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[ "Mr PERSON , a GPE national , currently resides at PERSON in the GPE .", "ORG On DATE the PERSON of Emmen ordered PERSON emergency confinement in a psychiatric hospital pursuant to section DATE ( b ) of LAW ( PERSON , see paragraph CARDINAL below ) . His decision was based on a medical report drawn up DATE by a psychiatrist , PERSON , according to which there were serious grounds for believing that the applicant suffered from a mental disorder representing an immediate danger to himself , to others and to public order . PERSON had already threatened members of his family and attacked a neighbour in her house .", "ORG On DATE the Crown Prosecutor ( PERSON ) requested the President of ORG ( Arrondissementsrechtbank ) of PERSON to extend the applicant ’s confinement . In addition to the file attached to this application , the President received a police report dated DATE containing the statements of various witnesses and of PERSON wife , and a memorandum , of the same date , setting out the opinion of the applicant ’s doctor , PERSON", "ORG On DATE , in the presence of Mr Jongeneelen , PERSON \" confidential counsellor \" ( patientenvertrouwenspersoon ) , the ORG President interviewed the applicant together with a psychiatrist , PERSON then consulted CARDINAL other persons by telephone - PERSON , PERSON wife and another doctor , PERSON made a brief note of their statements . Again by telephone , he gave a summary of the resulting information to PERSON .", "In a letter of CARDINAL DATE , Mr Jongeneelen told the applicant ’s lawyer that this conversation , which had lasted TIME , had taken place at his request and had given him ( Mr Jongeneelen ) an opportunity to put forward his views ; DATE after the conversation , the President had communicated the whole file to him .", "ORG On DATE the President ordered the continuation of the applicant ’s confinement pursuant to sections CARDINAL ( i ) and DATE ( j ) of LAW . Referring to the medical report by PERSON ( see paragraph PERSON above ) and the statements of PERSON , Dr. PERSON and the CARDINAL persons whom he had questioned by telephone ( see paragraph QUANTITY above ) , he considered that , because of his mental illness , the applicant was an immediate danger to himself , to others and to public order . The President added that it was clear from the statements which he himself had obtained and those contained in the police report of CARDINAL DATE that PERSON had already caused considerable disturbance to his neighbours . It was therefore to be feared that , as he was unaware of the effect of his actions on others , he would continue his unacceptable behaviour if he were to return home .", "Mr PERSON left the hospital on DATE . On DATE the President of ORG sent to the applicant ’s lawyer , at the latter ’s request , various documents from the file , including the note that he had made after interviewing PERSON and hearing the views of the persons whom he had questioned by telephone . He explained that circumstances relating to the organisation of the court made it impossible to arrange for a registrar to be present in every case of emergency confinement . There were CARDINAL large psychiatric hospitals within the court ’s jurisdiction and it was a small court .", "ORG On DATE the applicant filed an appeal on points of law with ORG ( PERSON ) against the order of CARDINAL DATE . He complained that the President of ORG had not specified sufficiently the nature of the danger which his mental illness represented for himself and for public order , that the President had held a hearing without a registrar ’s being present to draw up a record and , finally , that , before making the order , the President had failed to communicate to him the text of the statements of the persons whom he had telephoned , thereby depriving the applicant of any opportunity to react thereto .", "ORG In his submissions of CARDINAL DATE , the Attorney General at ORG ( ORG ) expressed the view that the second of these grounds ( and only the second ) was well - founded . However , on DATE ORG declared the appeal inadmissible , finding that Mr PERSON no longer had any interest in having the contested order quashed since the maximum period for an emergency confinement had already expired .", "ORG In the GPE the confinement of mentally ill persons is governed by LAW of DATE on ORG , commonly known as LAW ( PERSON , \" LAW \" ) .", "Sections CARDINAL ( b ) to CARDINAL ( j ) make provision for the emergency committal procedure which was followed in the present case .", "Where there are serious grounds for believing that a person represents an immediate danger to himself , to others or to public order on account of mental illness , the burgomaster of the municipality in which he resides is empowered to order his compulsory committal ( inbewaringstelling ) to a psychiatric hospital ( section CARDINAL ( b ) ) .", "In so doing , the PERSON is required first to seek the opinion of a psychiatrist or , if that proves impossible , of another medical practitioner ( section CARDINAL ( c ) ) . As soon as he has ordered a confinement , he must inform the Crown Prosecutor and transmit to him the medical certificate on which he based his decision ( section CARDINAL ( e ) ) . ORG has then , in his turn , to forward the certificate to the President of ORG , not later than DATE , requesting , where appropriate , the continuation of the confinement ( section CARDINAL ( i ) ) . The President must give his decision within DATE . An order to continue the confinement is valid for DATE , but the President may renew it for a second period of the same length if , before the expiry of the first period , an application for judicial authorisation for confinement ( rechterlijke machtiging , sections CARDINAL and CARDINAL ) is made ( section CARDINAL ( j ) ) .", "ORG By virtue of LAW I ( Reglement I ) made in pursuance of ORG ( Wet op de Rechterlijke Organisatie ) , \" hearings and examinations \" ( \" terechtzittingen en verhoren \" ) must be conducted in the presence of a registrar whose duty it is to draw up a record of the proceedings .", "ORG has held that , in view of the importance of having up - to - date information as a basis for a confinement decision , the judge may be justified in using information obtained by telephone . He must , however , communicate any such information to the person concerned or his counsel in order to enable them to comment on it . ORG has quashed a number of decisions on account of a failure to comply with this requirement ( see , for example , the judgments of DATE , CARDINAL May and DATE , PERSON ( GPE ) , ORG . CARDINAL , CARDINAL and CARDINAL ) .", "It appears from a judgment of DATE ( GPE DATE , no . CARDINAL ) that the case - law on the subject may be summarised as follows :", "if a judge obtains information by telephone , he must ensure that it is taken down in writing ;", "( a ) in principle , the judge must not make use of such information unless he has advised the person concerned or his counsel of its substance and has given them sufficient opportunity to comment on it ;", "( b ) this may also be done by telephone ;", "the decision or the documents of the court proceedings must show that the requirements referred to under CARDINAL ( a ) have been met ;", "only under special circumstances may the judge decide not to observe the rule referred to under CARDINAL ( a ) ;", "in such cases the reasons must be stated so as to enable ORG to assess whether rule CARDINAL has been complied with ;", "if a statement taken by telephone contains information concerning points that are essential for the decision and the judge has not unequivocally discounted that statement in his decision , it must be assumed that the judge made use of that information when reaching his decision .", "ORG On the question of the presence and the role of the registrar during hearings held pursuant to LAW , ORG has stated as follows :", "\" Having regard to the serious nature of decisions taken under LAW , to the requirements which have accordingly to be complied with in respect of the statement of the reasons on which they are based and to the importance of its being possible to review , in cassation proceedings , their conformity with those requirements , a record , signed by the registrar , must be made of any interviews effected and any questioning at the hearing . A copy of the record must be given to the person concerned if he so requests . \" ( judgment of CARDINAL DATE , GPE DATE , no . CARDINAL )", "In a judgment of DATE ( NJ DATE , no . CARDINAL ) , ORG held that , if these conditions were not complied with , the decision ordering the confinement was to be set aside , even though the person concerned had not indicated what consequences the failure to observe these requirements actually had in relation to him ." ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by PERSON , Agent , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE criminal proceedings were instituted against the applicant and other defendants on charges of smuggling persons . On DATE the NORP ORG preferred a bill of indictment . Hearings took place on DATE , DATE and DATE , DATE and DATE .", "On DATE the NORP ORG convicted the applicant of complicity in CARDINAL counts of smuggling persons and CARDINAL counts of violating personal liberty . ORG appreciated the length of the time which had elapsed from the commission of the crimes as a significant mitigating factor . Because of this , it sentenced the applicant to only DATE imprisonment , suspended for DATE , and to the confiscation of property in the amount of MONEY .", "On DATE the ORG upheld this judgment . Also appreciating the protraction of the proceedings , ORG reduced the probationary DATE ." ]

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[ "ORG In a decision of CARDINAL DATE the Prefect of the département of PERSON made a declaration that it was in the public interest to acquire by compulsory purchase land needed for the development of a residential area in the town of FAC , known as the PERSON project . The land included a plot belonging to the applicant on which stood a building used as a secondary residence by a member of her family .", "ORG On DATE the mayor of PERSON had applied to the LOC expropriations judge , who on DATE made an expropriation order transferring the applicant ’s land to the municipality and setting the amount of compensation to be paid to her . On CARDINAL DATE the applicant appealed against the order .", "ORG On DATE the ORG ( EPEVRY ) , which was responsible for carrying out the scheme , informed PERSON that she should have vacated the land by DATE . In DATE the town council demolished the fence , the buildings , the infrastructure for the supply of services , the vegetable garden and the orchard on the land .", "ORG On DATE , on the appeal by the expropriated applicant , ORG of ORG increased the amount of the expropriation compensation to MONEY ( ORG ) , which is currently held in deposit at ORG ( Essonne Treasury ) .", "ORG On DATE PERSON had brought proceedings in ORG . On DATE the court set aside the public - interest declaration on the grounds that it was ultra vires . It held that the declaration should have been made in a decree after consultation of the ORG d’Etat and not in a prefectoral decision ( see paragraph CARDINAL below ) . The inspector appointed to conduct the inquiry prior to the declaration in question had recommended that the scheme should not include existing houses that had sufficient land to make a garden for family use , as was the case with the applicant ’s property .", "ORG The town council appealed on DATE and lodged a pleading on DATE .", "In a judgment of CARDINAL DATE the ORG d’Etat upheld ORG judgment . It refused PERSON application for formal note to be taken that the town council had automatically abandoned the proceedings as it had failed to file a supplementary pleading in time , and also refused her claim for compensation , which had been submitted for the first time on appeal .", "ORG The applicant lodged CARDINAL appeals on points of law with ORG , the first against the expropriation order of DATE and the second against the judgment of ORG of DATE .", "In CARDINAL judgments of CARDINAL DATE ORG ) set aside the expropriation order providing for the transfer of ownership and \" in consequence \" set aside the judgment of ORG , which had ruled on the expropriation compensation . These judgments were served on the town council on CARDINAL DATE .", "ORG On DATE PERSON applied unsuccessfully to the town council , seeking either restoration of her rights or compensation in the amount of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL .", "ORG On DATE and CARDINAL DATE PERSON applied to ORG . On DATE he decided to take no action .", "ORG On DATE the applicant challenged the town council ’s implied decision to refuse her application in ORG . Her claim for restoration of her rights was accompanied by an application for compensation for non - pecuniary damage and loss of enjoyment of her property , which she assessed at FRF CARDINAL,CARDINAL,CARDINAL .", "ORG On DATE she brought proceedings in the NORP tribunal de grande instance against the mayor of PERSON and EPEVRY , seeking an order for demolition of the buildings erected on her land by the town council , with periodic penalties in the event of failure to comply , and damages .", "In joint submissions the defendants argued that it was not possible to return the property . It had been sold to EPEVRY with a view to a housing development and the individual building plots had in turn been sold to various different purchasers and had now been built on and were occupied .", "ORG On DATE the Evry tribunal de grande instance deferred judgment until ORG ruled and listed the case for the hearing that was to be held on DATE by the judge in charge of preparing the case for trial .", "ORG held a hearing on DATE and gave judgment on DATE .", "It held that the claim for return of the land was inadmissible on the ground that \" it [ was ] not for the administrative courts to issue orders to the authorities \" and ruled as follows on the claim for compensation :", "\" It is clear from the preparation of the case for trial that the expropriation ... in the public interest [ on ] DATE was carried out unlawfully . The dispossession of [ PERSON ] was accordingly an illegal expropriation of private property . It is for the ordinary courts alone , which protect private property , to deal with [ her ] claim for compensation for the loss [ she allegedly ] sustained as a result of the dispossession or of any direct consequences of it . \"", "ORG In the meantime , on DATE , PERSON application had been struck off the list of the Evry tribunal de grande instance . It was entered in the list again on DATE . On DATE the applicant filed fresh submissions seeking compensation .", "ORG In a judgment of CARDINAL DATE the Evry tribunal de grande instance noted that PERSON had implicitly abandoned her application for the buildings on her land to be demolished and held that she was entitled to compensation from the expropriating town council . It deferred judgment on the compensation claim , ordered an expert report on the value of the expropriated plot of land as at DATE and on the loss arising from her being deprived of her land and the price of it since then , and ruled that the town council should pay an advance on the costs of the expert report .", "ORG The expert received the file on DATE . He summoned the parties to an inspection of the site on DATE and filed his report on DATE . He assessed the total value at FRF CARDINAL , which he broke down as follows : FRF CARDINAL for the value of the property , covering the sum needed to purchase a similar property , FRF CARDINAL for the interest on the principal sum from DATE to DATE and ORG CARDINAL,CARDINAL compensation for loss of the enjoyment of the property over the same period . For this last item he adopted a rate of return of PERCENT on the value of the property , excluding the sum needed to purchase a similar property .", "ORG The proceedings are at present pending in the NORP tribunal de grande instance .", "Expropriation proceedings in the public interest comprise CARDINAL separate stages .", "The first stage is administrative . It begins with a preliminary inquiry - opened by a prefectoral decision - to gather information on the grounds for the expropriation . The inspector appointed to conduct the inquiry has DATE from the date on which it ends to consider observations from the public , to draw up his findings and then to forward the file to the administrative authority . If his opinion is unfavourable , or is favourable subject to conditions that the expropriating authority is not minded to satisfy , the public - interest declaration must be made in a decree adopted after consultation of the ORG d’Etat rather than in a prefectoral decision . This declaration establishes that the scheme is in the public interest . The expropriation liability order subsequently made by the ORG identifies the property to be expropriated and ends the administrative stage of the expropriation .", "The next step in the procedure is for the expropriating authority to forward the expropriation liability order , within DATE of its publication , to the judicial authority for expropriation matters , a judge of the ordinary court , failing which it will lapse .", "ORG The second stage takes place before the expropriations judge . He alone has the power to order expropriation and assess compensation . He does not , however , have competence to assess the lawfulness of the steps taken by the administrative authority . On receipt of the expropriation liability order that has been forwarded to him , he will issue an expropriation order transferring ownership to the expropriating authority and depriving the former owner of the right to dispose of his property . The former owner , however , retains the use of it as a provisional occupier until compensation for the loss of possession is paid or , in the event of a dispute , deposited .", "The proceedings for issuing the expropriation order are separate from those leading to the judicial assessment of the expropriation compensation ; they are generally conducted entirely by the expropriating administrative authority . This second set of proceedings may commence as soon as the prefectoral decision to open the public inquiry has been taken .", "The calculation of the expropriation compensation takes into account the value of the expropriated property , all the costs necessarily incurred in purchasing a replacement and , as subsidiary compensation , the depreciation in value of the remaining property where only part of it has been expropriated . The compensation amount may always be fixed by agreement , even after the expropriation order has been issued .", "ORG Anyone affected by an expropriation that enables a scheme in the public interest to be carried out may challenge the validity of the public - interest declaration in the administrative court within DATE of its publication . Appeals against expropriation liability orders must be brought within the same time . As a prefectoral decision to open a public - interest inquiry is seen as a purely preliminary measure , its lawfulness may only be challenged in conjunction with CARDINAL of those CARDINAL remedies . Any application on the merits may be accompanied by an application for a stay of execution , but appeals to the administrative courts do not in any event have a suspensive effect and do not prevent the expropriation proceedings continuing in the ordinary courts .", "ORG The only means of challenging an expropriation order is by lodging an appeal on points of law within DATE of the order being served . An appeal against a judgment in which compensation has been assessed may be brought within DATE of the decision being served and any appeal on points of law must then be brought within DATE of ORG judgment being served . These appeals do not have a suspensive effect and do not prevent possession being taken of the expropriated property .", "Lastly , if the compensation has not been either paid or deposited by the expropriating authority within DATE of the decision whereby it was assessed , the person expropriated may seek review of it by the expropriations judge .", "ORG Once a public - interest declaration has been set aside , there is no legal basis for the expropriation order . If , however , the declaration is set aside after the order has become final , the expropriation can not be legally challenged . It is accepted that a further public inquiry may be held to rectify the situation . In any event , the adage \" public buildings that have been erected unlawfully are not demolished \" applies ." ]

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[ "The applicant , PERSON , is a GPE national , born in GPE in DATE and living in GPE , GPE .", "The facts of the case , as set out in documents submitted by the applicant , may be summarised as follows .", "The applicant was involved in a boundary dispute with his neighbours . In DATE he had built a brick wall on an area which the neighbours claimed was their land , with the result that the neighbours commenced a civil action in trespass against the applicant in ORG in DATE . The neighbours instructed a partner in the litigation department at a local firm of solicitors , PERSON , PERSON and PERSON ( “ ORG ” ) , to act for them in connection with the dispute . The firm was the largest in GPE .", "The case was originally to be heard by a ORG Judge who , following the hearing of a number of preliminary issues on the case , became unavailable and was replaced by another such Judge ( “ the Deputy Judge ” ) on DATE . The applicant disputes the unavailability of the first Judge to preside over the proceedings after that date .", "The Deputy Judge and his wife had instructed the private client partner at ORG to prepare their wills in DATE . ORG had thereafter kept custody of the wills and , in DATE or DATE , the Deputy Judge and his wife instructed the same partner at ORG to amend their wills by way of new codicils . They made an appointment to call in at ORG ’s offices on TIME of CARDINAL DATE which , as the Deputy Judge was aware , would coincide with his presiding over the trespass proceedings .", "The trial commenced on DATE in order to allow CARDINAL of the ORG witnesses to give evidence , since he would not be available on the dates listed for trial DATE . On DATE , the District Judge heard the applicant ’s request that he withdraw from the case in favour of the original ORG Judge on the basis that the latter had been involved in the case throughout . The Deputy Judge refused the application . On DATE , the Deputy Judge heard an application by the applicant for summary judgment on the basis of alleged deliberate failure by the claimants , their expert and ORG to obey ORG . At the hearing , the Deputy Judge asked the applicant whether he was making a complaint about the conduct of ORG , to which the applicant responded that he was not . The applicant maintains that the Deputy Judge ’s question was aimed only at a specific part of the application for summary judgment , which part concerned failures only on the part of the ORG expert witness .", "The Deputy Judge informed the applicant upon resumption of the trial on DATE that ORG had made his will DATE previously , and that they still held it , and the applicant took no point on the issue . By DATE CARDINAL of the ORG , and CARDINAL of the applicant ’s , witnesses of fact had been examined at length . On TIME , the Deputy Judge or CARDINAL of his assistant staff approached the ORG counsel outside the judges’ robing room and informed him of the Deputy Judge ’s intention to impose a timetable for the trial , including a limit on the time to be allowed for examination - in - chief of outstanding witnesses of both parties . The ORG counsel passed on this message to the applicant as requested by the person who had spoken to him , and the Deputy Judge , upon resumption of the hearing , announced a TIME limit upon examination - in - chief of the remaining witnesses . As a result , the applicant decided not to call his second witness of fact , who was to travel to the hearing from GPE to testify , and that witness ’s written statement was not admitted into evidence .", "The hearing ended on TIME CARDINAL November CARDINAL and the Deputy Judge rose to consider his judgment TIME . He and his wife arrived at the offices of ORG and signed the codicils as previously arranged , meeting a solicitor and a paralegal who each witnessed the signatures . The paralegal had been waiting to meet a colleague in the reception area and was asked to witness the codicil on the spur of the moment . She had worked at ORG since around DATE in the firm ’s debt collection department and had assisted in typing some letters in connection with the ORG case against the applicant in DATE , CARDINAL and DATE . ORG subsequently wrote to the applicant and named the solicitor as a member of the firm ’s tax , trusts and probate department , but this identification is disputed by the applicant .", "The following TIME the Deputy Judge delivered judgement in the ORG proceedings in favour of the neighbours . The applicant was required to remove the wall which he had built on the land at issue , which was held to constitute part of the applicant ’s property . The applicant was also made subject to an injunction prohibiting him from entering onto the neighbour ’s land or interfering with it . The applicant was ordered to pay GBP CARDINAL in damages to the neighbours and a proportion of their costs .", "The applicant was granted leave to appeal to ORG by that court in DATE . He raised CARDINAL grounds of appeal : that the Deputy Judge had misunderstood or misdirected himself with regard to the necessary components of an “ adverse possession ” claim in that the neighbours had never had the necessary intention to possess ; that because the Deputy Judge before and during the trial had dealings with the solicitors acting for the neighbours , there was an appearance of bias ; and that the Deputy Judge conducted the hearing in an unfair manner , limiting the applicant ’s examination of his witnesses in a way in which the neighbours had not been so limited . Lord Justice PERSON , in granting leave , commented that he considered all CARDINAL grounds arguable , but that the third was of lesser weight .", "The applicant found out about the Deputy Judge ’s DATE meeting at ORG shortly afterwards .", "At the hearing of the appeal before ORG on DATE , the applicant confined his grounds of appeal to the first CARDINAL grounds considered at the leave stage , although the court did comment on all CARDINAL grounds in its judgment . On the first ground , following a fresh examination of the facts , the court concluded that adverse possession had been established in favour of the neighbours , and that such possession had continued for DATE thereby extinguishing the applicant ’s predecessor - in - title ’s ownership of the land . Lord Justice PERSON went on to comment on the second and third grounds of appeal as follows :", "“ CARDINAL . It seems to me that the fair - minded and informed observer would recognise that every judge lives in the community and that in his private life , away from his judicial life , he may need to use the services of service providers , including solicitors . That observer would also appreciate that solicitors , by the very nature of their work , have many clients the affairs of each of whom must be kept separate from those of another client . The use by a judge of the services of a firm of solicitors for his personal purposes , such as for drafting his will , would not , I think , give rise to any expectation , or even any suspicion , in the fair - minded and informed observer that the judge in his judicial capacity would , by reason of that connection over his will , be untrue to his judicial oath and favour another client of those solicitors . The observer would take note of the fact that at the time when the Deputy Judge heard the evidence of Mr PERSON [ the applicant ’s predecessor - in - title ] he was not aware who were the solicitors of the claimants [ ie the applicant ’s neighbours ] and that , having heard that evidence , the Deputy Judge was the obvious person to complete the hearing of the trial . Indeed , if he had stood down , there would at least have been a risk that Mr PERSON ’s evidence would have to be taken in front of another judge , thereby adding disproportionately to the costs of what is essentially a very minor dispute . The observer would take note of the fact that the Deputy Judge volunteered the information that the PERSON solicitors had acted for him in preparing his will and that the Deputy Judge had obtained the express confirmation of the parties that there was no objection to him continuing to preside in the case . The observer would , in my view , have attached particular importance to the fact that the will , as the Deputy Judge told the defendants [ ie the applicant ] was being kept by the PERSON solicitors . That in itself would indicate that there was a continuing relationship with the solicitors and that it was possible that the will might need to be altered in some way ( and codicils are frequently made after a will has been executed ) , when probably there would be contact between the Deputy Judge and those solicitors . As the Deputy Judge obtained confirmation from the defendants that despite his connection with the solicitors over his will there was no objection to him continuing to sit , the observer would reasonably regard the completion of a codicil , which the solicitors had been asked by the Deputy Judge to prepare , as within the reasonable scope of what had been cleared with the parties .", "The witnessing of the signature of the testator on a testamentary document , as the informed observer would know , is a mere ministerial task , and the fact that a secretary in the litigation department of the solicitors happened to be available to be such a witness is in itself neither sinister nor significant . The observer would note that the Deputy Judge as made clear that he did not discuss the PERSON case against the defendants when he went to complete his codicil .", "The passing of a message to the claimants’ counsel by the Deputy Judge , or the court usher , or the Deputy Judge ’s clerk would not , in my view , be regarded by the observer as of any significance whatsoever . There is no evidence that the Deputy Judge was consulting PERSON in passing that message to PERSON and PERSON PERSON . I have already stated that what PERSON has said occurred . In my judgment , it is impossible to regard that incident as indicating any appearance of bias .", "... the mere fact that a witness of the Deputy Judge ’s signature to his codicil was a secretary who had some connection with the case , in that her initials appear ( with the initials of another ) on letters to the defendants in relation to this case , would not appear to the fair - minded observer to be of any importance . Nor , in my judgment , can there possibly be some sort of duty on the Deputy Judge to have investigated precisely what functions were performed in the affairs of the claimants’ solicitors by a mere witness to his signature .", "Looking at the matter objectively , I am wholly unable to see that the fair - minded and informed observer would conclude from the various matters to which Mr PERSON has attached importance that this was a case in which there has been an appearance of bias . For this reasons , therefore , I do not accept his arguments on this ground .", "For completeness I should also deal briefly with Mr PERSON ’s further objection that the Deputy Judge conducted the trial unfairly in imposing a timetable on the trial at DATE , only allowing TIME for the examination in chief of further witnesses . Mr PERSON submits that this is quite unfair , because CARDINAL witnesses for the claimants were examined in chief at greater length on DATE .", "In my judgment there is nothing in this point either . The chief witness of fact for the defendants was PERSON . It is apparent from the transcript of the hearing in DATE that Mr PERSON was examined by Mr PERSON in chief at some length . The fact that the CARDINAL sons of the late Mr PERSON were examined on DATE for rather longer than TIME does not , to my mind , lead to the conclusion that on CARDINALth DATE the Deputy Judge , exercising his case management powers and imposing a rather more rigorous timetable from then on , was showing bias or acting unfairly . The Deputy Judge ’s direction also applied to the further witnesses of the claimants . In any event , as I have said , the main witness of the defendants had already given evidence without any time limit . Further the other witnesses had produced witness statements and there was no need for there to be a lengthy examination in chief . ( ... ) ”", "ORG therefore dismissed the appeal .", "The applicant has recently discovered that the Deputy Judge was never charged by ORG for the work done in connection with the codicils signed on DATE . In this connection , the Deputy Judge wrote to the head of ORG in DATE indicating that the purpose of the codicils was to delete a charitable gift that he and his wife had decided to give instead in celebration of his wife ’s seventieth birthday . He attached a letter dated DATE from ORG , which explains that the codicil involved the deletion of CARDINAL clause of the wills of the Deputy Judge and his wife and that , given the simplicity of the work , it would have been uneconomic to render an account for it .", "The applicant has informed the ORG that be a further hearing is listed before ORG for DATE on the question of whether or not that court has jurisdiction to re - open the matter in light of the recent developments ." ]

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[ "NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before the Court by Ms PERSON , a lawyer practising in GPE .", "ORG ( “ the Government ” ) were represented successively by their Agents , PERSON , PERSON and PERSON , of ORG .", "On DATE the applicant was taken to the NORP police headquarters for questioning in relation to fraud charges . He was suspected , together with GPE , his business associate , of having written cheques to be drawn on the bank account of the company they owned together , despite being aware that there was no money in that account . In the absence of a lawyer , the applicant gave a statement and maintained that he had acted in accordance with the law at all times . At TIME , after he gave this statement , the police informed the applicant that he was accused ( învinuit ) , according to domestic law . The applicant waived his right to have an appointed lawyer .", "On DATE the applicant was brought before a prosecutor . He gave a new statement in the presence of a lawyer who had been appointed to represent him . It appears from the documents in the file that he maintained his initial statement . He was then placed under arrest and taken to the cells of Bihor police station .", "On DATE a complaint that the applicant had lodged against the arrest warrant was allowed and ORG ordered his immediate release .", "On DATE he was summoned to appear in front of the prosecutor for further questioning . On that occasion , he was again placed in pre - trial detention . He was subsequently released on DATE , following a decision of ORG allowing a challenge to his arrest brought by the applicant .", "NORP Before being released , on DATE he was transferred to FAC , where his head was shaved .", "The applicant was committed for trial and the case was registered with ORG . On DATE the county court fixed a new date for the start of the trial , because the summons had not been served on the applicant at the correct address . On CARDINAL DATE following a written request from the applicant , the trial was again postponed to CARDINAL June DATE . On DATE , the applicant was absent from the trial hearing but his lawyer was present . The county court questioned GPE and dismissed further requests for witnesses to be heard made by GPE and the prosecutor , holding that the written evidence in the file was a sufficient basis on which to decide the case . It proceeded to judge the case , convicting the applicant of having been an accessory to fraud and sentencing him to six years’ imprisonment . In so ruling , the county court mainly relied on the parties’ submissions and on the commercial and accounting evidence adduced before it .", "The applicant lodged an appeal . On DATE ORG examined the case by calling , at the applicant ’s request , one witness and also hearing the parties’ submissions . The applicant was present on this occasion . On DATE , ORG acquitted the applicant of all charges , holding that the first - instance court had erred in its interpretation of the evidence as to the applicant ’s guilt . It considered that the simple fact that the applicant had written CARDINAL cheques following the instructions of his co - accused did not indicate that he was guilty , as long as he had not been aware that the cheques could not be cleared because of a lack of money in the account .", "The prosecutor appealed . The case was heard by ORG on DATE . The applicant was present at the hearing and he was also represented by CARDINAL lawyers of his choosing . His lawyers presented arguments for dismissing the appeal on points of law . From the report of the hearing , it appears that the applicant made a concluding statement to the effect that he agreed with his ORG submissions .", "In his application , the applicant maintained that both he and his coaccused had been heard by ORG . However , he submitted that he had only been asked CARDINAL questions during the hearing , namely : ( i ) if he was a business associate of his coaccused ; and ( ii ) if the new criminal proceedings pending against him also related to fraud . He also claimed that these CARDINAL questions , and his answers to them , were purposely omitted from the transcript of the hearing . The Government did not provide any clarification on that point .", "On DATE , the same date as the hearing , ORG delivered a final decision by which it found the applicant guilty , convicted him of having been an accessory to fraud and sentenced him to DATE imprisonment . It held that the evidence available in the case file was sufficient to indicate that the applicant had knowingly written the cheques and had been aware that there was no money in the account to clear them .", "On the basis of this final decision , the applicant started serving his prison sentence . He was conditionally released on DATE .", "The relevant provisions of LAW with regard to the authority of the courts of appeal , as in force at the time of the events , read as follows :", "“ ( CARDINAL ) A court judging on an appeal shall review the contested decision on the basis of the evidence in the file and all additional written documents that were adduced before it .", "( CARDINAL ) NORP In order to decide on the appeal , the court can make a new assessment of the evidence in the file and can order any new evidence that it deems necessary ( ... ) ”", "“ A court judging an appeal shall decide to :", "( ... ) CARDINAL . uphold the appeal and :", "( a ) quash the decision of the first - instance court , deliver a new decision and proceed in accordance with LAW . to [ render ] a judgment on the merits ( ... ) ”", "The relevant provisions of LAW with regard to the authority of the courts examining appeals on points of law that were in force at the time of the events , as well as the amendments to those provisions adopted in DATE , are detailed in the case of PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in ORG . He was represented before the ORG by Dr J. Herrera , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "Following a car accident on DATE , the applicant was sued by third parties for damages .", "According to section CARDINAL ( CARDINAL ) of LAW ( ORG ) the action was filed with ORG ( ORG ) . As the parties did not agree on the choice of arbitrator , an arbitrator was appointed by the ORG ’s Chairman according to section CARDINAL ( CARDINAL ) of the ORG ( see relevant domestic law ) . The applicant acknowledged that the CARDINAL insurance policies covering the traffic accident had not been issued by an insurance company for which the arbitrator nominated acted as a legal adviser when working in private practice . Thus , there was no direct conflict of interest .", "At the first sitting the applicant submitted that the law making this type of action subject to arbitration , as opposed to the ordinary courts , breached his LAW rights under LAW . At the request of the applicant the proceedings were suspended pending the outcome of constitutional proceedings ( see below ) . After they were resumed in DATE the proceedings were again suspended pending the outcome of proceedings before this ORG . According to the applicant , had he not requested these suspensions , the ORG would have argued that he had accepted the jurisdiction of the arbitrator .", "On DATE the applicant instituted constitutional redress proceedings alleging a breach of LAW on account of the fact that he was forced to submit his case to an arbitrator who did not offer sufficient guarantees of independence and impartiality . He requested the court to stay the proceedings .", "By a judgment of CARDINAL DATE ORG ( FAC ) in its constitutional jurisdiction upheld the applicant ’s claim . It considered that the applicant had a legal interest in filing the claim as it was the law itself and not its application in the applicant ’s case that infringed his rights . It held that since arbitration was mandatory in certain cases , the tribunal had to be independent and impartial . Having analysed the ORG provisions ( see relevant domestic law ) , it considered that an arbitrator was subject to the ORG ’s decision . The ORG ’s Chairman had a discretion to decide whether to appoint a person as arbitrator and whether to appoint that person again in a subsequent case . It followed that the appointment of an arbitrator to CARDINAL or more cases depended on the subjective appreciation of the ORG , who was to an extent subject to the control of the Minister . Thus , the arbitrator did not enjoy security of tenure . He or she would be chosen for specific cases and might never be chosen again if disliked . The court further considered that an appeal on points of law could not remedy this defect , since such right of appeal was limited in scope . In consequence , ORG did not fulfil the requirement of independence under LAW , particularly where , as in the instant case , the parties had not agreed on the choice of arbitrator . The court further held that the system also created justified doubts as to the objective impartiality of ORG , having regard to its composition , organisation and the appointment and removal of arbitrators .", "On DATE the defendants appealed .", "By a judgment of DATE ORG upheld the appeal and reversed the first - instance judgment . Reiterating that the ORG must comply with the requirements of impartiality and independence , it held that the criteria for choosing an arbitrator according to LAW ( see relevant domestic law ) were intended to ensure that persons appointed as arbitrators were competent and displayed integrity . In the absence of agreement between the parties , the selection of an independent arbitrator was left to the chairman . While it was true that the chairman was appointed by the Minister and was therefore to a certain extent subject to the Minister ’s control , this could not be relevant since in most cases the Government were not a party to the arbitration proceedings . It followed that section CARDINAL ( CARDINAL ) of the ORG ( see relevant domestic law ) offered sufficient guarantees . Moreover , the removal of an arbitrator was , like any other decision of the ORG , an administrative decision subject to judicial review . However , the removal of an arbitrator from a particular case was usually intended to increase the efficiency and effectiveness of the procedure and could not raise issues as to security of tenure . Lastly , in the applicant ’s case there was no actual or realistic threat to the independence of the tribunal . For the reasons stated above , the court also considered that there was no issue of partiality , particularly because the arbitrator was independent of the parties in a case and the law offered sufficient guarantees in this respect . A chairman making an appointment would have to take account of all the relevant considerations beforehand . Indeed , in the present case , it did not appear that the applicant was complaining about the specific choice of arbitrator in his case . Since such proceedings were LAW compliant it was not necessary to consider whether an appeal could have remedied the defect alleged .", "In so far as relevant , the pertinent provisions of LAW , LAW of LAW , read as follows :", "Section CARDINAL", "“ ( CARDINAL ) There shall be a ORG which shall be responsible for the policy and general administration of the affairs and business of the ORG .", "( CARDINAL ) The ORG shall consist of not CARDINAL and not CARDINAL members , appointed by the President of GPE acting on the advice of the Minister , one of whom shall be designated by the Minister as chairman . The Minister shall also designate another member as deputy chairman and such member shall have all the powers and perform all the functions of the chairman during his absence , or until a new chairman has been appointed following the resignation , termination of appointment , or death of the chairman .", "( CARDINAL ) The Minister shall select the members of ORG from among persons who appear to him to be qualified by reason of having had experience of and shown capacity in matters relating to international or domestic arbitration , conciliation and the settlement of disputes , international trade , commerce , industry , investment and maritime affairs .", "( CARDINAL ) In the exercise of their functions under this LAW all the members of the ORG shall exercise their functions in their individual judgment and shall not be subject to the direction or control of any other person or authority . ”", "Section CARDINAL", "“ ( CARDINAL ) Subject to the provisions of sections CARDINAL , CARDINAL and DATE , the members of the ORG shall hold office for a DATE period ; a member shall , on ceasing to be a member , be eligible for reappointment :", "Provided that the Minister may at any time , on the recommendation of ORG established under article LAW , terminate the appointment of a member of ORG if in his opinion , confirmed by the recommendation of ORG as aforesaid , such member is unfit to continue in office or has become incapable of properly performing his duties as member of ORG , and ORG is hereby vested with the function and power to make a recommendation to the Minister as aforesaid . ”", "Section CARDINAL", "“ ( CARDINAL ) The Centre shall have a registrar , who shall also be the secretary of ORG . In connection with his functions under this LAW , the registrar shall have power to administer oaths , including , without prejudice to the generality of the aforesaid , the power to administer oaths of office that may be required to be taken by arbitrators or any other person involved in arbitration proceedings under any rule made under LAW : ( ... ) ”", "Section CARDINAL", "“ ( CARDINAL ) The ORG may , from time to time , draw up panels of arbitrators for domestic arbitration and panels of arbitrators for international commercial arbitration :", "Provided however that a person may be included in CARDINAL panel .", "( CARDINAL ) Domestic arbitration panels may be appointed on matters related to commerce , insurance , traffic collisions , building construction , the maritime sector and such other fields as the ORG may deem expedient from time to time . The panels shall be composed of persons who in the opinion of the ORG are qualified to carry out the duties and functions of arbitrators in a particular field of expertise .", "( CARDINAL ) A person may be removed from any panel by ORG at any time , and a person may at any time resign by letter addressed to the registrar :", "Provided that any such removal or resignation shall not be deemed to include the removal or resignation of that person from any arbitration proceedings in which he may have already been appointed before his removal or resignation . ”", "Section CARDINAL", "“ ( CARDINAL ) If a sole arbitrator is to be appointed , either party may propose to the other the names of CARDINAL or more persons , CARDINAL of whom may serve as the sole arbitrator .", "( CARDINAL ) If within DATE after receipt by a party of a proposal made in accordance with subsection ( CARDINAL ) , the parties have not reached agreement on the choice of a sole arbitrator , the sole arbitrator shall be appointed by the chairman .", "( CARDINAL ) The chairman shall , at the request of CARDINAL of the parties , appoint the sole arbitrator as promptly as possible ; his decision shall be final and binding .", "( CARDINAL ) In making the appointment , the chairman shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and to the members of ORG established under section ORG ) . ”", "Section CARDINAL", "“ ( CARDINAL ) A person who is approached as a prospective arbitrator shall disclose to those who approach him in connection with his possible appointment any circumstances likely to give rise to justifiable doubts as to his impartiality or independence .", "( CARDINAL ) An arbitrator , once appointed or chosen , shall disclose to the parties the circumstances mentioned in the previous subsection unless the parties have already been informed by him of these circumstances . ”", "Section CARDINAL", "“ ( CARDINAL ) Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubt as to the arbitrator ’s impartiality or independence .", "( CARDINAL ) A party may challenge the arbitrator appointed by him only for reasons of which he becomes aware after the appointment has been made . ”", "Section CARDINAL", "“ ( CARDINAL ) A party who intends to challenge an arbitrator , shall send notice of his challenge within DATE after the appointment of the challenged arbitrator has been notified to that party or within DATE after the circumstances mentioned in DATE became known to that party .", "( CARDINAL ) The challenge shall be notified to the registrar , to the other party , to the arbitrator who is challenged and to the other members of the arbitral tribunal . The notification shall be in writing and shall state the reasons for the challenge .", "( CARDINAL ) When an arbitrator has been challenged by CARDINAL party the other party may agree to the challenge . The arbitrator may also , after the challenge , withdraw from his office . In neither case does this imply acceptance of the validity of the grounds for the challenge . In both cases the procedure provided in articles CARDINAL and CARDINAL shall be used in full for the appointment of the substitute arbitrator even if during the process of appointing the challenged arbitrator a party had failed to exercise his right to appoint or to participate in the appointment . ”", "Section CARDINAL", "“ ( CARDINAL ) If the other party does not agree to the challenge and the challenged arbitrator does not withdraw , the decision on the challenge will be made by the chairman , and his decision shall be final and binding .", "( CARDINAL ) When the chairman sustains the challenge , he shall appoint a substitute arbitrator . ”", "By virtue of LAW ( CARDINAL ) of the LAW disputes arising from collisions between vehicles are subject to mandatory arbitration and in such cases the parties shall be deemed to be bound by an arbitration agreement in relation to such disputes .", "In so far as relevant LAW , Subsidiary Legislation CARDINAL , LAW of CARDINAL as amended in DATE and DATE , read as follows :", "Section CARDINAL", "“ The appointment of an arbitrator shall be accompanied by a confirmation by such arbitrator accepting his appointment together with a declaration by him confirming his independence and impartiality in terms of LAW . ”", "Section CARDINAL", "“ ( CARDINAL ) In case of breach of duty by an arbitrator in relation to the management of the arbitration proceedings , the Registrar [ of the FAC ] may issue orders in writing to the arbitrator who shall be bound to comply as soon as possible with such order .", "( CARDINAL ) ORG may request the Registrar to issue any such orders to any arbitrator if , when reviewing progress in any arbitration , the ORG notes that any provisions of the LAW , these rules or any guidelines are not being observed or that the arbitrator is failing to manage the arbitration process efficiently .", "( CARDINAL ) When an arbitrator fails to observe the orders of the Registrar issued in terms of this rule , the Registrar shall report on such circumstances to ORG and the Board shall determine what disciplinary action to take against the arbitrator .", "( CARDINAL ) In case of breach of the duty of independence by the arbitrator because of an undisclosed conflict of interest or because of irregular communication or otherwise , with CARDINAL of the parties or any person on behalf of a party , the Registrar shall make a written report to ORG copied to the arbitrator and to the parties and the ORG shall decide what actions are to be taken .", "( CARDINAL ) In cases referred to above , the ORG shall determine the issue after giving the arbitrator the opportunity of being heard and after considering such other evidence as may be appropriate .", "( CARDINAL ) In such cases the ORG has the power to take such disciplinary action as it considers appropriate in view of the circumstances . The powers of the ORG include :", "( a ) the issuing of orders in relation to the proceedings ;", "( b ) the removal of the arbitrator from the arbitration ;", "( c ) the removal of the arbitrator from the domestic panel of arbitrators , and", "( d ) the imposition of a disqualification to act as an arbitrator in GPE for a stated period not exceeding DATE .", "( CARDINAL ) Action taken in terms of this rule by the ORG shall be without prejudice to any rights of the parties under applicable law .", "( CARDINAL) Nothing in the foregoing rule shall limit the rules applicable to the challenge of arbitrators in the LAW . ”", "By means of Act IX of DATE a number of amendments to LAW were passed by ORG , improving the guarantees applicable to arbitration . However , the Minister retained the power of introducing such amendments at later stages by means of a legal notice . On DATE correspondence with the applicant , namely DATE , these amendments had not yet come into force ." ]

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[ "The applicant , PERSON is a NORP national , born in DATE and living in PERSON .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "On DATE the applicant acquired , at a public auction , a business situated in a commercial centre in GPE in accordance with the relevant provisions of ORG of DATE ( see “ Relevant domestic law ” below ) . On DATE the owner of the premises in which the business was situated concluded a tenancy agreement with the applicant as required by LAW . The tenancy agreement was concluded for a period expiring on DATE . On DATE the ownership of the commercial centre was transferred to a private limited company .", "As the new owner and the applicant failed to reach an agreement as regards the tenancy of the LOC , the owner sued the applicant and claimed that she should vacate the LOC .", "On DATE the Bratislava III ORG ( then ORG , at present ORG súd ) granted the action and on DATE ORG ( ORG ) upheld this decision . The judgments stated , inter alia , that the original tenancy agreement of CARDINAL DATE was void as it had not been approved by the competent administrative authority as required by the law . On DATE ORG ( Najvyšší súd ) dismissed the applicant ’s appeal on points of law .", "On DATE the applicant filed an action with GPE ORG claiming that the new owner of the LOC should be ordered to conclude a tenancy agreement with her for a DATE period pursuant to LAW . She joined the text of the agreement to be concluded to her action .", "On DATE the Bratislava III ORG granted the action and ordered the defendant to conclude a tenancy agreement with the applicant as suggested by the latter . The defendant appealed .", "On DATE ORG ( PERSON súd ) overturned the first instance judgment . ORG held , inter alia , that the applicant had benefited from her right under LAW of ORG in that she had concluded a tenancy agreement with the original owner .", "On DATE the applicant filed an appeal on points of law . She alleged that the tenancy agreement of CARDINAL DATE was void and that she had not , therefore , used the premises de iure . She maintained that the period during which she had used the LOC could therefore not be taken into consideration when determining her right under LAW ) of ORG .", "On DATE ORG dismissed the applicant ’s appeal on points of law . It established that the applicant had used the premises de facto for a certain time . In ORG view , it was irrelevant whether this use had been covered by a valid legal title when examining whether and to what extent the applicant ’s right under LAW ) of ORG had been respected . ORG concluded that the applicant was entitled to claim that the new owner should conclude a tenancy agreement with her only for the outstanding period , i.e. so that the overall period during which she would be able to effectively use the premises amounts to DATE . ORG further recalled that in cases when a plaintiff seeks the injunction that an agreement be concluded and the draft text of such an agreement is joined to the action , a court can either grant the action or reject it , but it lacks jurisdiction to modify the terms of the agreement proposed by the plaintiff . ORG judgment was served on DATE .", "Section CARDINAL of ORG of DATE ( PERSON o prevodoch vlastníctva štátu k niektorým veciam na iné právnické alebo fyzické osoby , Coll . No . DATE ) , as in force until DATE , provides that a person who acquired a business under the provisions of this LAW has the right to have an agreement on tenancy of the LOC in which the business is located concluded with the owner of the LOC or , as the case may be , his or her legal successor . The duration of the tenancy agreement should be DATE unless the parties otherwise agree .", "Under LAW ) of ORG , as in force from DATE , the persons concerned have the right to have such a tenancy agreement concluded for DATE .", "Under LAW ) of ORG , as in force from DATE , when the person concerned and the owner of the LOC fail to reach an agreement as regards the rent , its amount shall be determined by the competent administrative authority in accordance with the relevant law ." ]

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[ "The applicants were born in DATE in DATE respectively and live in GPE .", "On DATE the first applicant , acting in his capacity as a journalist , published an article in ORG , a DATE newspaper , under the headline “ Minister PERSON convicted of tax fraud ” ( Minister PERSON überführt ) . He alleged in the article that the minister had broken the Seventh , Eighth and Ninth Commandments by committing value - added tax ( VAT ) frauds . He went on to say that a politician from the right might have been expected to take the rules so carefully drawn up by PERSON more seriously . He added that a fiscal fine of MONEY had been imposed on the minister . He said in conclusion that the minister ’s conduct was particularly shameful in that it involved a public figure , who should have set an example .", "The applicants produced documents showing that the fine had been imposed on the minister concerned on DATE by the Director of the Registration and ORG et des domaines ) , pursuant to section CARDINAL(CARDINAL ) of LAW of DATE . The decision had been served on the minister on DATE . It also appears that on DATE the minister appealed to ORG against the fine . In a judgment of DATE , ORG ruled that the fine was not justified as the offence under section CARDINAL(CARDINAL ) of LAW of DATE had not been made out . An appeal was lodged against that judgment to ORG . The parties have not furnished any further information regarding developments in those proceedings .", "The decision of DATE was the subject of comment in other newspapers , such as the DATE FAC and the weekly d’Lëtzebuerger Land . A NORP member of ORG also tabled a parliamentary question on the matter .", "CARDINAL sets of court proceedings were issued following the publication of the first applicant ’s article .", "On DATE the minister brought an action in damages in ORG against the first applicant and ORG , arguing that they had been at fault in publishing the information concerning the fiscal fine and making comments which he said constituted an attack on his honour . In a judgment of DATE , ORG dismissed the minister ’s action on the ground that the article came within the sphere of freedom of the press . In a judgment of DATE , ORG overturned ORG judgment .", "On DATE the minister lodged a criminal complaint .", "On DATE the public prosecutor requested the investigating judge to open an investigation into a suspected offence by the first applicant of handling information disclosed in breach of professional confidence , and by a person or persons unknown of breach of professional confidence . The public prosecutor stated in his submissions : “ The investigation and inquiries should determine which civil servant or civil servants from the Registration and ORG had any involvement in the case and access to the documents . ” The public prosecutor also requested the investigating judge to carry out or arrange for searches of the first applicant ’s home and any appurtenances , the offices of ORG and the ORG and ORG offices .", "Various searches were then carried out .", "On DATE the investigating judge issued CARDINAL warrants for searches to be made of the first applicant ’s home and workplace , the investigators being instructed to “ search for and seize all objects , documents , effects and/or other items that [ might ] assist in establishing the truth with respect to the above offences or whose use [ might ] impede progress in the investigation ” . The first order specified that the places to be searched were “ PERSON home and appurtenances , ... , any place in which he may be found and cars belonging to or used by him ” .", "Both warrants were executed on DATE , but no evidence was found .", "On DATE the first applicant applied for orders setting aside the warrants issued on DATE and all the investigative steps taken pursuant thereto , in particular the searches carried out on DATE . In addition to arguments based on domestic law , he alleged a violation of LAW , emphasising that he was entitled to protect his journalistic sources .", "ORG , sitting in closed session , dismissed both applications in CARDINAL orders of DATE . It noted that the minister had complained of a number of matters , including the unlawful disclosure of information to the first applicant by Registration and ORG officials , which the first applicant had allegedly gone on to use in a calumnious and defamatory newspaper article . Those matters were capable of falling within the definition of various criminal offences , including breach of professional confidence , breach of fiscal confidentiality , theft , handling , calumny and criminal defamation . ORG said that civil servants were prohibited by LAW ( statut général des fonctionnaires ) from disclosing any information that was confidential by nature which they had acquired in the course of their duties . It was a criminal offence under LAW to disclose confidential fiscal information and an offence under LAW for anyone receiving confidential information as part of their professional duties to divulge it . As to the handling offence , ORG said that LAW applied to anyone who , by whatever means , knowingly benefited from the proceeds of a serious crime ( crime ) or other major offence ( délit ) . According to legal commentators and the leading cases , handling could extend to intangible property , such as claims , but also manufacturing secrets or material covered by professional privilege . In that connection , the fact that the circumstances in which the property had been obtained had not been fully established was of little relevance if the alleged handler was aware of its unlawful origin ; the classification of the primary offence was immaterial . ORG found that the investigating judge in charge of the investigation had been entitled to order an investigative measure to obtain corroboration of the incriminating evidence already in his possession . It added that there had been no violation of LAW , since the searches – which had been ordered to assemble evidence of and establish the truth concerning possible criminal offences that may have led to or facilitated the publication of a newspaper DATE had not infringed freedom of expression or freedom of the press .", "By CARDINAL judgments of DATE , ORG , sitting in closed session , dismissed appeals that had been lodged against the orders of DATE .", "On DATE the investigating judge issued a search warrant for immediate execution at the offices of the second applicant , who was the first applicant ’s lawyer in the domestic proceedings .", "In the course of the search , the investigators seized a letter of DATE from the Director of the Registration and ORG to the Prime Minister bearing a handwritten note : “ To ORG . Letter transmitted in confidence for your guidance . ” The applicants explained that the letter had been sent anonymously to the editorial staff of ORG and the first applicant had immediately passed it on to his lawyer , the second applicant .", "On DATE an application was made to have the search warrant and all subsequent investigative steps set aside .", "ORG , sitting in closed session , granted that application on the ground that , in breach of section CARDINAL of LAW , the report of the police department that had executed the warrants on DATE did not contain the observations of the Vice President of ORG , who was present during the search and seizure operations . ORG ruled that the seizure carried out on DATE was invalid and ordered the letter of DATE to be returned to the second applicant .", "The letter was returned on DATE .", "NORP However , on DATE the investigating judge issued a fresh search warrant with instructions to “ search for and seize all objects , documents , effects and/or other items that might assist in establishing the truth with respect to the above offences or whose use might impede progress in the investigation and , in particular , the document dated DATE bearing the manuscript note to the heads of division ” . The letter was seized once again DATE .", "On DATE the second applicant applied for an order setting the warrant aside , arguing , inter alia , that there had been a breach of the principle guaranteeing the inviolability of a lawyer ’s offices and of the privilege attaching to communications between lawyers and their clients . That application was dismissed by ORG , sitting in closed session , on DATE . It noted , firstly , that investigating judges were empowered to carry out searches even at the homes or offices of persons whose professional duties required them to receive information in confidence and who were legally bound not to disclose it and , secondly , that the provisions of section CARDINAL of LAW of DATE had been complied with . The search and seizure operations had been executed in the presence of an investigating judge , a representative of the public prosecutor ’s office and the President of ORG . In addition , the presence of the President of ORG and the observations he had considered it necessary to make regarding the protection of the professional confidence attaching to the documents to be seized had been recorded in the police department ’s report .", "In a judgment of CARDINAL DATE , ORG , sitting in closed session , dismissed an appeal against the order of DATE .", "In a letter of DATE , the first applicant enquired of the investigating judge as to progress in the case . He complained that no other steps had been taken and reminded the judge that he was not supposed to disregard the provisions of LAW . He sent a similarly worded reminder on DATE .", "On DATE the applicants provided the ORG with an article from DATE edition of the DATE newspaper d’Lëtzebuerger Land , containing the following extract :", "“ ... the inquiry in the PERSON case has thus just ended with a search of the home of a Registration and ORG official , a member of ORG , and the logging of the incoming and outgoing telephone calls of CARDINAL other members of the [ ORG ] ... ”", "On DATE the first applicant sent a further reminder to the investigating judge , who stated in a reply of DATE : “ The judicial investigation is continuing . ”", "Following a letter from the first applicant dated DATE , the investigating judge informed him DATE that the police inquiries had finished and that the investigation file had just been sent to the public prosecutor for his submissions .", "On DATE the first applicant referred the public prosecutor to the terms of LAW and reminded him that although the investigation in the case had taken DATE , he had yet to be charged .", "On DATE the first applicant received a summons requiring him to attend for questioning on DATE in connection with the offences referred to in the complaint . He was informed that he was entitled to have a lawyer present .", "The first applicant was charged by the investigating judge on DATE with “ handling information received in breach of professional confidence ” .", "The applicants produced an article from the CARDINAL DATE edition of the newspaper ORG , which revealed that the Prime Minister “ considered that the methods employed by the investigating judge in the investigation into a breach of professional confidence were ‘ NORP ” .", "An order made on DATE by ORG , sitting in closed session , reveals that the charges against the first applicant were ruled to be null and void and that the case file was sent to the investigating judge with jurisdiction with instructions either to end or to continue the investigation .", "On DATE the applicant sent the ORG a letter from the investigating judge dated DATE informing him that “ the judicial investigation [ had ] just ended ” .", "Article CARDINAL of LAW provides : “ Searches shall be carried out in any place in which objects that would assist in establishing the truth may be found . ”", "Article CARDINAL of that Code provides : “ The investigating judge shall carry out the seizure of all objects , documents , effects and other items referred to in Article QUANTITY . Article QUANTITY provides that the following may be seized : “ ... and generally , anything which may assist in establishing the truth , whose use may impede progress in the investigation or which is liable to confiscation or restitution . ”", "Section CARDINAL(CARDINAL ) of LAW of DATE provides :", "“ Lawyers’ workplaces and all forms of communication between lawyers and their clients shall be inviolable . If in civil proceedings or a criminal investigation a measure is taken against or in respect of a lawyer in the circumstances defined by law , such measure shall not be implemented other than in the presence of the President of ORG or his or her representative or after they have been duly convened .", "The President of ORG or his or her representative may submit observations to the authorities which ordered the measures regarding the protection of professional confidence . A record of a seizure or search shall be null and void unless it contains a statement that the President of ORG and his or her representative were present or had been duly convened and any observations they considered it necessary to make . ”" ]

[ "10", "8" ]

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[ "The applicant was born in DATE and lives in GPE am GPE , GPE .", "On DATE the applicant and his wife ( hereafter PERSON ) divorced before FAC . In this context , ORG granted them joint custody of their QUANTITY daughters , aged DATE at that time .", "On DATE , following PERSON appeal ( Beschwerde ) and after hearing both her and the applicant as well as CARDINAL representatives of the local ORG , ORG granted PERSON sole custody of the children , while allowing the applicant to retain a right of access . It found that , given the fact that the parents did not seem entirely willing to co - operate in practical matters , it would be in the children ’s best interest if decisions concerning their everyday life were taken by their mother alone . It added that the mother had agreed to discuss important decisions with the applicant and that she was expected to ensure that contacts between the applicant and his daughters would continue on a regular basis . In its decision , ORG did not admit an appeal on points of law ( weitere Beschwerde ) .", "On DATE the applicant lodged a constitutional complaint with ORG . He claimed in particular that the decision of ORG had misinterpreted the existing provisions on custody of children , notably Section CARDINAL of LAW ( see Relevant domestic law , below ) , and infringed his parental rights guaranteed by LAW .", "On DATE the President of ORG informed the applicant that he had communicated the case to CARDINAL parties , who had the right to submit their observations until DATE . The list of third parties included ORG ( GPE ) , ORG PERSON ) , ORG , ORG , the President of ORG , the parties of the proceedings before ORG , as well as various national organisations dealing with family law issues and involved in the protection of children .", "On CARDINAL DATE , following the applicant ’s request dated CARDINAL DATE , ORG forwarded the pertinent written observations dated CARDINAL and DATE , CARDINAL and DATE , CARDINAL DATE and CARDINAL DATE and CARDINAL DATE . These included the observations of ORG of DATE stating that the ORG planned an amendment of the law on family matters , inter alia by introducing explicit provisions on joint custody after divorce .", "DATE , the applicant received a telephone call from ORG informing him that the questions raised by his complaint would become obsolete with the expected entry into force of the amended LAW DATE ( Kindschaftsrechtsreformgesetz ) on DATE . The applicant was asked whether he wanted to declare that his constitutional complaint had been disposed of ( PERSON ) under these circumstances .", "On DATE the applicant requested ORG to deliver a decision despite the change of law brought about by ORG .", "On DATE ( decision served on DATE ) , ORG , sitting as a panel of CARDINAL judges , refused to admit the applicant ’s constitutional complaint . It found that due to the amended PERSON on Family Matters , the constitutional complaint no longer raised issues of general interest . The applicant ’s complaints could be adequately dealt with in proceedings for the amendment of a court order ( ORG ) pursuant to Section CARDINAL § CARDINAL of LAW ( see Relevant domestic law , below ) before the competent civil courts . In these proceedings , the new legal provisions on family matters could be taken into account .", "Section CARDINAL of LAW , in its version in force until DATE , provided that the court sitting in family matters had to grant the custody of a child to CARDINAL of his or her parents divorcing . The provision has been amended by ORG , which entered into force on DATE . Pursuant to the amended Section DATE of LAW , parents who split up keep , as a rule , joint custody of their children . The courts sitting in family matters award sole custody to CARDINAL parent only if a motion is filed to this end and certain further conditions are satisfied , especially if sole custody is best for the child ’s well - being .", "The statutory provision on the amendment of a court order concerning the custody of a child , Section CARDINAL § CARDINAL of LAW , in its version in force until DATE , was worded as follows :", "“ The court sitting in guardianship matters and the court sitting in family matters may modify their decisions at any time during the continuation of parental custody , if they consider this to be necessary in the interest of the child . ”", "Section CARDINAL § CARDINAL of LAW , as amended by ORG in force since DATE , provides :", "“ The court sitting in guardianship matters and the court sitting in family matters must modify their decisions , if this is necessary for cogent reasons which have a lasting effect on the child ’s well - being . ”" ]

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[ "6-1" ]

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[ "Mr PERSON , a retired headteacher , lives in GPE ( Pistoia ) .", "On DATE he took early retirement . On DATE he asked to be reappointed to his former post , but on DATE ORG refused his request , in accordance with the unfavourable opinion of ORG . Mr PERSON then appealed to ORG ( “ the ORG ” ) , which , on DATE , set aside the ORG 's decision on the ground that no reasons had been given for it . On CARDINAL DATE the applicant applied to be reinstated , but this request was likewise refused on CARDINAL DATE .", "On DATE the applicant again applied to the ORG for judicial review of the decision of CARDINAL DATE .", "On DATE the applicant asked for a date to be fixed for the hearing and on CARDINAL October of DATE he filed an application for the case to be set down for an urgent hearing .", "On DATE the case was set down for DATE .", "On DATE appointed the ORG gave judgment in the applicant 's favour . The text of its decision was deposited with the registry on DATE ." ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON . He is represented before the Court by Mr J. Södergren , a lawyer practising in GPE . The respondent Government were represented by PERSON of ORG , as Agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In TIME of DATE , the so - called “ DATE TIME ” , a row broke out between the applicant and his wife in the couple ’s home . Later , on DATE , at TIME , a fire ravaged the home , a wooden house owned by the applicant , which burned down to the foundation walls .", "The applicant was subsequently charged under LAW , LAW , with ill - treating his wife , and LAW , LAW with arson for setting his house on fire .", "In DATE ORG convicted the applicant on the first count and sentenced him to DATE imprisonment . On the second count , it acquitted him , finding that , notwithstanding the existence of strong arguments supporting the prosecution ’s case , it had not been shown beyond reasonable doubt that the applicant was guilty of the offence .", "On DATE ORG upheld the judgment . As regards the arson charge , it observed :", "“ As found by ORG , there are strong reasons for believing that [ the applicant ] started the fire in his villa . However , there is nothing in the investigation that directly links him to this act . Nor does the investigation exclude the possibility that the fire was caused by an accident or had been started by another person . Since it can not therefore be regarded as established beyond reasonable doubt that [ the applicant ] started the fire , the charge must be rejected . ”", "Subsequently , the applicant instituted civil proceedings against his insurance company , ORG , requesting a declaratory judgment to the effect that the latter was obliged under the insurance contract to pay him compensation for the damage caused by the fire to his house and personal belongings .", "ORG , sitting with a different bench from the one in the criminal case , held an oral hearing during which evidence was heard from the applicant , the witnesses who had given evidence during the criminal trial and a number of new witnesses . The written evidence adduced by the parties was to a large extent the same as had been submitted in the criminal proceedings .", "In its judgment of DATE , ORG found for the insurance company and against the applicant . The judgment contained an introductory section entitled “ Background ” , in which ORG quoted ORG above - cited conclusion , and a summary of the parties’ submissions ( “ PERSON ” ) . This was followed by ORG reasoning ( “ Domskäl ” ) , which gave an itemised description of the written and oral evidence , reiterated the contents of some of the new oral evidence , and set out ORG assessment . It first reiterated the standards of proof applicable to cases of insurance compensation , noting that it was not disputed here that an insured event had occurred , but only whether the matter fell within the exception clause in H CARDINAL of the insurance policy , cf . section CARDINAL of LAW ( konsumentförsäkringslagen ) , which it was for the insurance company to prove . In this connection the ORG emphasised that a factor that was significant for distinguishing the assessment of evidence in the civil case from that of the criminal case was the applicant ’s silence .", "ORG then examined , at quite some length , the evidence , including that from experts , as to the possible natural causes of the fire , notably the house ’s electrical installations and heating system , in particular a combined wood - and - oil burner and the chimney . It concluded that such causes could be excluded and that there were therefore weighty reasons for considering that the cause must lie somewhere else . It went on :", "“ As already stated , [ the applicant ] for his part has not been able to contribute with any explanation as to the origin of the fire . He had good opportunities to start the fire . According to the investigation , shortly before the fire , he went in and out of the house several times .", "ORG considers that no person other than [ the applicant ] can be suspected of having started the fire . The information provided by [ his wife ] to the police during the first interview makes the suspicion against him particularly strong . During the police interview she had stated inter alia that [ the applicant ] threatened to burn the house down if she and her son were to move . The evidence obtained at the police interviews must be given particular evidential value . Subsequently she has provided new and different information in a curious manner . Her new statement does not seem credible . She has strong personal reasons for trying to save the family ’s financial situation . The new information could be explained , or at least seen , in the light of the fact that , as she admits , she talked with [ the applicant ] about the circumstances relating to the origin of the fire before ORG hearing . Even during the hearing in the previous case PERSON gave barely credible explanations for departing from the information that she had spontaneously provided during the first police interview and has not convincingly presented her new version , inter alia that she should have been inside the house immediately before the fire and seen smoke in the house , amongst other things . She has been further examined on these points and has stated that she did ‘ not know how she should reply’ .", "What first and foremost indicated that [ the applicant ] started the fire is that , in connection with a row with his wife , he expressed a threat to burn the house down , plus the fact that his state of mind was clearly such that , in a fit of desperation , he could very well be believed to have started the fire by using the inflammable liquids that were in the house . His disposition for taking dramatic steps is confirmed by the suicidal thoughts that he expressed immediately after the fire . The assumption that [ the applicant ] himself started the fire with the help of inflammable liquids is supported by the development of the fire as witnessed by several eye witnesses and , with the exception of PERSON , by the evidence heard from technical experts on fire incidents . CARDINAL of the apparent factors which likewise suggests that [ the applicant ] started the fire is that , as pointed out by ORG in its judgment of CARDINAL DATE , immediately before the fire [ the applicant ] carried his son from his room in the house out to the lorry and the fact that [ the applicant ] was in the house , in the cellar , at the precise moments that the smoke became apparent . Furthermore , it should be taken into consideration that [ the applicant ] himself , voluntarily , raised the question of arson with Mr Mats Eriksson [ police officer ] when the police intervened against him after the fire .", "ORG finds that the circumstances adduced in support of the submission that [ the applicant ] intentionally started the fire outweigh other possible causes of the fire to such a high degree that insurance compensation should not be paid . The appeal shall therefore be rejected . ”", "The applicant appealed to ORG . That court , too , sat in a different composition from that in the criminal case . The applicant relied mainly on the same evidence as before ORG . ORG heard evidence from the applicant at his own request and from several expert witnesses and heard tape recordings of a number of witness statements taken by ORG , including those of the applicant ’s wife and mother , at their request .", "In its judgment of CARDINAL DATE ORG upheld ORG judgment .", "Like ORG , ORG first considered the various possible technical causes of the fire and endorsed ORG findings that such causes had to be excluded .", "“ [ The applicant ] ’s behaviour during the DATE TIME and the disquiet and anxiety that he aroused in PERSON and his mother indicate that he was mentally highly imbalanced . The information that PERSON finally provided in order to protect him appears , as ORG held , not to be credible . Furthermore regard should be had to the fact that the statements initially made by [ the applicant ] about the fire during the police interviews – the first time , when he had not yet been informed that he was under suspicion of having committed an offence – are not supported by the remainder of the investigation . Thereafter he has not been able to contribute any explanation . ORG draws the same conclusion as ORG from the fact that after the initial police interview [ the applicant ] has given hardly any information about the event . Against this background and having regard to the case as a whole , there is no possibility of considering that the fire was started by any person other than [ the applicant ] .", "In view of these considerations the insurance company must be considered to have shown – in accordance with the standard of proof applicable to civil cases of this kind DATE that [ the applicant ] started the fire . His request for a declaratory judgement shall therefore be rejected and ORG judgment shall stand . ”", "The applicant sought leave to appeal against ORG judgment . On DATE ORG refused leave .", "LAW , section CARDINAL , of LAW ( brottsbalken ) provides :", "“ If a person starts a fire , which entails a danger to another person ’s life or health or extensive damage to another person ’s property , he or she shall be convicted of incendiarism and be sentenced to imprisonment of DATE .", "Where the offence is less serious , the person shall be sentenced to imprisonment of DATE . ”", "LAW , section CARDINAL , first sub - paragraph of LAW reads :", "“ Unless otherwise specifically provided , an act shall be considered a criminal offence only if it has been committed with intent . ”", "“ If you have caused the insured event by intent you shall not receive any compensation for your part . The same applies if another person acted with your consent or if the person has significant financial interests in common with you ( for example your spouse ) and there are no particular reasons to the contrary .", "This is also the case - except where it concerns a third party insurance - if the insured event has been caused by gross negligence and there are no particular reasons to the contrary . ”", "It is not claimed that the above - cited policy clause conflicted with the relevant provisions of LAW , section CARDINAL of which provides that no insurance cover will be provided in favour of an insured person who has intentionally caused the insured event and that the cover may on certain conditions be reduced if an insured event has been caused by gross negligence or negligence which is not insignificant .", "Different standards of proof apply to criminal and civil cases . In a criminal case the burden of proof is entirely on the prosecutor , who must establish beyond any reasonable doubt that the defendant has committed the act in question and that he did so with the necessary intent or negligence . In a civil case , the burden of proof is normally on the plaintiff . The standard of proof in a civil case differs according to the type of case and the circumstances that have to be proved , but is less strict than in a criminal case .", "According to examples of ORG case law submitted by the Government ( see , e.g. , ORG DATE p. CARDINAL , NJA DATE p. CARDINAL , NJA DATE p. CARDINAL , NJA DATE p. CARDINAL and ORG DATE p. CARDINAL ) , in cases concerning insurance compensation to consumers it is for the policyholder to show that , having regard to the circumstances as a whole , it is more likely than not that an insured event has occurred . The policyholder ’s burden of proof is viewed as somewhat more lenient than the ordinary civil burden of proof . If the insurance company responds that no compensation shall be granted because the policyholder has intentionally caused the insured event , the burden shifts onto the company , which has to prove this in accordance with the ordinary civil standard ." ]

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[ "The applicant was born in DATE and lives in the town of LOC , GPE .", "On DATE ORG of the LOC commenced bankruptcy proceedings against ORG GPE Zavod ” , the applicant 's former employer . According to the Government , these proceedings are still pending .", "On DATE the ORG ordered that company to pay the applicant UAH CARDINAL,CARDINAL in salary arrears .", "On DATE ORG instituted enforcement proceedings .", "NORP By letter of DATE , ORG of ORG informed the applicant that the judgment in his favour had not been executed due to the substantial number of enforcement proceedings against the debtor company and that the procedure for the forced sale of assets belonging to it had been blocked by the PERSON on the Introduction of a Moratorium on the Forced Sale of Property of DATE .", "On DATE ORG sold PERCENT of the debtor 's share capital to a private company . Under the terms of the sales contract , the latter undertook to pay all the salary - related debts of the debtor company .", "On DATE the full amount of the judgment debt was transferred to the deposit account of ORG . The applicant was invited to submit his bank account details to ORG . On an unspecified date the applicant received the full amount of the debt .", "The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE and DATE , DATE ) ." ]

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[ "6-1" ]

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[ "Mr PERSON , the applicant in application No . CARDINAL ( the first applicant ) , was born in DATE and lives in GPE . Mr PERSON , the applicant in application No . CARDINAL ( the second applicant ) , was born in DATE and lives in GPE .", "DATE and DATE the second applicant was the representative of the company PERSON , ORG . and he was entitled to act on the company 's behalf in that capacity . On DATE he was replaced by the first applicant who carried out that function until DATE . Prior to that , on DATE , the second applicant had authorised the first applicant , then director of company PERSON , ORG . , to act on the company 's behalf . From DATE to CARDINAL DATE Mr I. succeeded the first applicant as the above company 's representative .", "On DATE Mr T. , a police investigator of ORG in Prešov , accused PERSON of unauthorised trading in foreign currency . PERSON was accused of having authorised , as a co - owner of the company PERSON , a sale of bills of exchange in GPE without the approval of the central bank . The transaction had been carried out in DATE . The investigation file had the number KÚV-CARDINAL/CARDINAL - CARDINAL .", "On DATE investigator PERSON accused Mr I. of a different offence in the context of proceedings KÚV-CARDINAL/CARDINAL - CARDINAL . I. was accused of fraud and money laundering on the ground that he had unlawfully obtained and used a sum of money while acting as the representative of companies PERSON o.c.p . , a.s . and C.S.I. PERSON , a.s . According to the accusation , ORG had issued bills of exchange which had been uncovered and void . The transaction had allegedly been made in GPE in DATE and it had involved the same person as the above transaction of DATE .", "The police investigator summoned the first applicant to an interview as a witness in the case against ORG first applicant appeared before the investigator and indicated that he wished to avail himself of the right under LAW of LAW to remain silent with a view to avoiding any criminal proceedings against him . This fact is recorded in TIME applicant 's interview of DATE .", "On DATE investigator ORG issued a decision , under LAW , in which he imposed a procedural fine of SKK CARDINAL,CARDINAL on the first applicant . The decision stated that the applicant had refused , on DATE , to make a witness statement in the criminal case against NORP concerning fraud . The decision also stated that the applicant had relied on LAW and that the investigator had concluded , after having considered the position in the case , that the applicant 's statement as a witness could not result in the initiation of criminal proceedings against him . The decision had the number GPE .", "The second applicant , like the first applicant , was summoned to an interview by investigator PERSON in the context of criminal proceedings brought against Mr I. On DATE , prior to interviewing the second applicant , the investigator informed him that he could remain silent , pursuant to LAW , if his statement could result in his or his close relatives ' prosecution for a criminal offence . The second applicant used that right . According to the minutes , he had stated that he would not mention the reasons for his decision to remain silent .", "In a decision of CARDINAL DATE the investigator imposed a procedural fine of SKK CARDINAL,CARDINAL on the second applicant under LAW . The decision stated that the applicant had refused , without justification , to make a witness statement in a criminal case and that he had been warned that he could be fined therefor . According to the decision , the applicant had not indicated any reason for his refusal and the investigator concluded , after having considered the evidence in the case , that his witness statement had not been susceptible of resulting in his prosecution .", "On DATE the police investigator accused the first applicant of conspiracy to defraud on the ground that he had been involved in the fraudulent elaboration of a contract with a view to obtaining a considerable sum of money from the ORG . The decision had the file number PERSON .", "On DATE investigator ORG issued CARDINAL decisions under investigation file number KÚV-CARDINAL/CARDINAL - CARDINAL accusing several persons of criminal offences .", "In the first decision PERSON , the CARDINAL applicants and CARDINAL other persons were accused of conspiracy to defraud . The case concerned the transfer of securities of the joint stock company ORG , a.s . The alleged offence had been committed in DATE . A public prosecutor at ORG in ORG quashed the investigator 's decision on DATE . No further criminal proceedings have been brought against the second applicant subsequently .", "In the second decision dated DATE investigator PERSON accused the first applicant , together with Mr I. and another person , of preparatory acts relating to money laundering . It was imputed to the first applicant that , as representative of the company GPE , a.s . , he had participated in the fraudulent elaboration of a contract in DATE , and that he had transferred securities of ORG , a.s . to his company .", "On DATE the police investigator joined to a single set of proceedings the above cases against Mr I. and , inter alios , the first applicant registered under file numbers KÚV-CARDINAL/CARDINAL - CARDINAL , KÚV-CARDINAL/CARDINAL - CARDINAL and KÚVCARDINAL/OVEK-CARDINAL . On DATE the investigator discontinued the proceedings against Mr I. ( file number KÚV-CARDINAL/CARDINAL - CARDINAL ) brought on DATE as no offence had been committed .", "On DATE the public prosecutor indicted the first applicant , PERSON and QUANTITY other persons before ORG in Prešov in the context of transfer of securities of Transpetrol , a.s . The first applicant was charged with CARDINAL offences .", "Firstly , the applicant was accused of fraud , together with PERSON and QUANTITY other persons , on the ground that they had fraudulently elaborated a pre - dated contract , in DATE , after a tax authority had issued a warrant with a view to securing a possible debt of company ILaS Vranov , ORG . As the warrant had prevented the company PERSON , ORG . from complying with its obligations under the above contract , the ORG had later been ordered to pay SKK CARDINAL,CARDINAL,CARDINAL as compensation for the fine foreseen under that contract . The ORG 's alleged debt had subsequently been enforced by means of a transfer of securities of ORG , a.s . The public prosecutor concluded that , as a result , ORG had suffered a financial loss totalling SKK CARDINAL .", "Secondly , the first applicant was accused of having engaged in preparatory acts relating to money laundering in that he had acquired , as representative of the company GPE , a.s . , CARDINAL shares in the company Transpetrol a.s . which had been obtained by means of the above transasction and that he had intended to sell those securities abroad through his co - accused Mr I.", "On DATE ORG in PERSON returned the case to the public prosecutor for further investigation .", "On DATE ORG quashed ORG decision of CARDINAL DATE and ordered the first - instance court to proceed with the case . In its decision ORG referred to the fact that the second applicant had refused to make statements as a witness at interviews on DATE , CARDINAL DATE and DATE with reference to LAW . Further questioning of the second applicant would in such situation amount to undue pressure with a view to forcing him to make a statement which he had refused to make in accordance with the relevant provisions of LAW . ORG concluded that any evidence obtained in those circumstances could not be used in subsequent proceedings .", "The criminal proceedings are pending .", "On DATE the first applicant filed a complaint against the decision of DATE to impose a fine on him . He argued that he had availed himself of his right to remain silent as he had considered that his statement could give rise to criminal proceedings against him . He had not been warned that a fine could be imposed on him , and the investigator had not informed him that the position in the case excluded the bringing of criminal proceedings against the first applicant .", "On DATE the ORG Deputy Prosecutor dismissed the complaint . The decision stated that the first applicant had not indicated the reason for his refusal to make a statement . Under LAW of LAW , a witness was obliged to inform an investigator why he or she refused to make a statement . Where the investigator did not accept the reasons invoked , the witness was obliged to answer the questions .", "The first applicant requested that an extra - ordinary complaint be filed against the above decision imposing a fine for his refusal to make statement as a witness .", "On DATE a public prosecutor at ORG dismissed the request . In his letter the public prosecutor summed up the relevant facts as follows . On DATE the first applicant had to be heard as a witness in the context of criminal proceedings KÚV-CARDINAL/CARDINAL - CARDINAL against Mr I. Those proceedings concerned an unlawful sale of bills of exchange , in DATE , which had resulted in the transfer of approximately SKK CARDINAL to the account of the company ILaS Vranov , ORG . on DATE . The offences imputed to the accused comprised also several other actions including the misuse , in DATE , of bonds issued by a company of which PERSON had been the director and transfer of that company 's assets to several persons including the applicant . The police investigator had joined the above proceedings , on DATE , as both the applicant and PERSON had been accused in the case registered under file number KÚV-CARDINAL/CARDINAL - DATE . However , the actions imputed to Mr I. in proceedings KÚV-CARDINAL/CARDINAL - CARDINAL , in the context of which the applicant had refused to make a witness statement , were entirely unrelated to the facts of the other cases .", "NORP The public prosecutor held that a witness could remain silent only to the extent that a specific part of his statement was susceptible of resulting in the introduction of criminal proceedings against the witness or his or her next of kin . As the first applicant had had no apparent reason for refusing to make a witness statement , and since he had given no specific reason for such a refusal , the decision imposing a procedural fine had been justified .", "The second applicant filed a complaint against the decision imposing a fine on him . He argued , with reference to the record of the interview with the investigator , that he had remained silent as he had considered that a statement could give rise to criminal proceedings against him . The fine amounted to the application of psychological pressure to him .", "On DATE the ORG Deputy Prosecutor dismissed the second applicant 's complaint . The decision stated that the applicant had not given any reason for his refusal to make a statement . Under LAW of LAW , a witness was obliged to inform the investigator why he or she refused to make a statement . Where the investigator did not accept the reasons invoked , the witness was obliged to answer the questions .", "On DATE the second applicant petitioned ORG for a complaint in the interest of the law to be filed on his behalf . He challenged the above procedural fine . The fact that the same investigator had accused him of an offence on DATE proved that the fine had been imposed with a view to coercing the second applicant to make a statement on the relevant facts .", "In a letter of DATE a public prosecutor of ORG refused to file an extra - ordinary complaint on the second applicant 's behalf for reasons similar to those set out above in respect of the petition filed by the first applicant .", "On DATE a different public prosecutor of ORG confirmed that conclusion . The letter stated , in particular , that the interview in question had concerned offences imputed to other persons and that the second applicant , therefore , had had no valid reason for refusing to answer the questions . The offence of which the second applicant had been accused subsequently concerned facts different from those on which he had been asked to make a witness statement .", "Article CARDINAL § CARDINAL reads as follows :", "“ Everyone is entitled to refuse to make a statement where it would be susceptible of resulting in his or her prosecution for a criminal offence or in prosecution of a different person close to him or her . ”", "Under LAW , a person who , despite previous warnings , disturbs proceedings or behaves in an offensive manner in relation to a court , a public prosecutor , an investigator or a police authority or , without sufficient excuse , does not obey an order or does not comply with an instruction addressed to him or her under LAW , can be punished with a procedural fine of up to SKK CARDINAL,CARDINAL .", "Pursuant to Article CARDINAL , everybody is obliged to appear before a prosecuting authority upon summons and to make a statement as a witness about facts which he or she knows about an offence , its perpetrator or issues which are considered important for the purpose of criminal proceedings .", "Article CARDINAL § CARDINAL reads as follows :", "“ A witness is entitled to refuse to make a statement where such a statement would entail the risk that criminal proceedings would be brought against him , against his relative in direct line , his sibling , a person whom the witness adopted or by whom he was adopted , against the spouse or partner of such a witness or against any other person with whom the witness has family - like relations and whose harm the witness would justifiably perceive as being his own harm . ”", "NORP The domestic authorities have held that a person who wishes to remain silent pursuant to LAW must state the reason for his or her refusal to make a statement . The decision whether or not such a person 's recourse to LAW is justified lies with the authority by whom the witness is to be heard . Where the authority concerned does not accept the reasons invoked , the witness is obliged to make a statement .", "Where the refusal of a witness to make a statement is justified , an investigator can not circumvent the witness 's right to remain silent by inquiring into the reasons for such a refusal and facts related to the subject - matter of the envisaged interrogation , and by mentioning those facts subsequently in TIME of the interrogation . The information contained in such an unlawfully obtained statement can not be used as evidence in criminal proceedings ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by PERSON , the former Representative of GPE at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In the period DATE the applicant , then a resident of PERSON , GPE , deposited MONEY in CARDINAL savings accounts with the ORG branch of ORG , which was an integral part of ORG .", "In DATE hostilities commenced in GPE .", "In DATE the applicant left GPE because of the fighting and settled in the town of GPE in LOC . According to the applicant , shortly after his arrival he submitted his savings books ( сберегательные книжки ) to the GPE branch of ORG and requested the latter to transfer and repay his deposits and those of his late father . The bank registered the applicant ’s savings books , but refused to transfer his savings , referring to a telegram from ORG which had imposed a ban on any transactions in respect of the deposits made with ORG .", "On DATE the applicant complained in writing to the central office of ORG and to its GPE branch .", "In letters of DATE the central office and the GPE branch of ORG informed the applicant that as a result of the events in GPE , ORG had lost a considerable number of blank savings books and official seals , which could enable the falsification of claims for the reimbursement of deposits . In these circumstances , in DATE ORG suspended all transactions in respect of deposits made in GPE , and then wound up ORG . Moreover , ORG did not allot funds for the reimbursement of the deposits made in GPE , “ in the absence of guarantees that those funds would be used for specified purposes ” .", "Following the bank ’s refusal , the applicant filed a court complaint , seeking to have his savings transferred to the GPE branch of ORG and repaid to him .", "On DATE the ORG rejected the applicant ’s claims as unfounded . The court refused to confirm that the applicant was entitled to the reimbursement of his deposits by the GPE branch of ORG , noting that under relevant regulations the mere fact that an individual had savings books was insufficient to confirm that a particular amount of money had been deposited in his account and that , as well as the savings books , the applicant should have supplied a document proving that his deposits had been transferred from ORG to another branch of ORG , which the applicant had failed to do .", "On DATE ORG upheld the first - instance judgment on appeal , having noted that ORG had defaulted on its obligation to repay the applicant ’s savings because of force majeure , namely due to the hostilities in GPE and the winding up of ORG . The court also noted that as soon as ORG reached agreement with the Government of GPE , it would pay back the funds of those individuals who were registered on the list of former depositors of ORG , and that it was open to the applicant to apply for registration on that list .", "The applicant ’s attempts to contest the above court decisions by way of supervisory review proved unsuccessful .", "In their memorial of DATE the Government informed the ORG that DATE and DATE the Government of GPE within the territory of this republic , and the branches of ORG in other regions of GPE , had made a list of the former depositors of ORG who had produced their savings books ( сберегательные книжки ) .", "On DATE the Savings Bank of GPE commenced payment of compensation to those included on the list . As provided by governmental decree no . CARDINAL of DATE , this procedure was applied in respect of savings deposited with ORG prior to DATE .", "From DATE until DATE the authorities made an additional list of former depositors of ORG . In the ORG ’s submission , “ repayment of deposits to those included in the additional list would be made in the near future ” .", "From DATE TIME ORG adopted an DATE decree which reproduced the provisions of their decree no . CARDINAL of DATE concerning compensation of deposits made prior to DATE in the territory of GPE .", "According to the Government , the applicant was put on the list of the former depositors of ORG , but did not apply for the repayment of his deposits until the present moment .", "In letters of DATE and CARDINAL DATE the GPE branch of ORG informed the applicant that he could apply for his deposits , the accrued interest and compensation , upon presenting his identity documents and submitting his savings books , which would be retained by the bank after the repayment . According to the letters , the applicant would be furnished with a certificate providing the details of calculation of the sum repaid .", "In DATE the President of ORG ( Председатель правления Сберегательного PERSON ) ordered that all operations in respect of deposits with ORG be suspended until further notice .", "By virtue of decision no . CARDINAL of ORG dated DATE the branches of ORG on the territory of GPE were wound up and removed from ORG . Powers of attorney issued to the heads of those branches were revoked and annulled .", "By section CARDINAL of decree no . CARDINAL “ On payment to certain categories of citizens of GPE in DATE of preliminary compensation ( compensation ) in respect of deposits with ORG and certain insurance organisations ” dated DATE the Government of GPE entitled the former depositors of ORG to compensation for deposits they had made prior to DATE . In particular , individuals who lived outside the territory of GPE could obtain compensation in those branches of ORG which had put them on the list of former depositors of ORG .", "Section CARDINAL of governmental decree no . CARDINAL “ On payment to certain categories of citizens of GPE in DATE of preliminary compensation ( compensation ) in respect of deposits with ORG and certain insurance organisations ” dated DATE reproduces the provisions of section CARDINAL of decree no . CARDINAL of DATE concerning compensation of deposits made prior to DATE in the territory of GPE ." ]

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[ "The applicant was born in DATE and lives in the town of GPE , an important steel - producing centre QUANTITY north - east of GPE . In DATE her family moved to a flat situated at CARDINAL Zhukov Street , QUANTITY from the site of the Severstal steel plant ( “ the plant ” ) . This flat was provided by the plant to the applicant 's husband , PERSON , under a tenancy agreement .", "The plant was built during the NORP era and was owned by ORG of the Russian NORP Federative Socialist Republic ( RSFSR ) . The plant was , and remains , the largest iron smelter in GPE and the main employer for CARDINAL people . In order to delimit the areas in which the pollution caused by steel production might be excessive , the authorities established a buffer zone around the Severstal premises – “ the sanitary security zone ” . This zone was first delimited in DATE . It covered a CARDINAL,CARDINAL-metre - wide area around the site of the plant . Although this zone was , in theory , supposed to separate the plant from the town 's residential areas , in practice CARDINAL of people ( including the applicant 's family ) lived there . The blocks of flats in the zone belonged to the plant and were designated mainly for its workers , who occupied the flats as life - long tenants ( see “ Relevant domestic law and practice ” below ) . A decree of ORG , dated DATE , imposed on ORG the obligation to resettle the inhabitants of the sanitary security zone who lived in districts nos . CARDINAL and CARDINAL by DATE . However , this has not been done .", "NORP In DATE the government of the ORG adopted a programme “ On improving the environmental situation in GPE ” . The programme stated that “ the concentration of toxic substances in the town 's air exceed[ed ] the acceptable norms many times ” and that the morbidity rate of GPE residents was higher than the average . It was noted that many people still lived within the steel plant 's sanitary security zone . Under the programme , the steel plant was required to reduce its toxic emissions to safe levels by DATE . The programme listed a number of specific technological measures to attain this goal . The steel plant was also ordered to finance the construction of QUANTITY of residential property DATE for the resettlement of people living within its sanitary security zone .", "By Municipal Decree no . CARDINAL of DATE , the boundaries of the sanitary security zone around the plant were redefined . The width of the zone was reduced to QUANTITY .", "In DATE the steel plant was privatised and acquired by ORG . In the course of the privatisation the blocks of flats owned by the steel plant that were situated within the zone were transferred to the municipality .", "On DATE the government of GPE adopted Decree no . CARDINAL on the special federal programme “ Improvement of the environmental situation and public health in GPE ” for DATE ” ( in DATE this programme was replaced by the special federal programme “ GPE 's ecology and natural resources ” ) . Implementation of the DATE programme was funded by ORG . The second paragraph of this programme stated :", "“ The concentration of certain polluting substances in the town 's residential areas is CARDINAL times higher than the maximum permissible limits ( MPLs ) [ ] ... The biggest ' contributor ' to atmospheric pollution is ORG , which is responsible for PERCENT of all emissions . The highest level of air pollution is registered in the residential districts immediately adjacent to ORG 's industrial site . The principal cause of the emission of toxic substances into the atmosphere is the operation of archaic and ecologically dangerous technologies and equipment in metallurgic and other industries , as well as the low efficiency of gas - cleaning systems . The situation is aggravated by an almost complete overlap of industrial and residential areas of the city , in the absence of their separation by sanitary security zones . ”", "The decree further stated that “ the environmental situation in the city ha[d ] resulted in a continuing deterioration in public health ” . In particular , it stated that over the period from DATE the number of children with respiratory diseases increased from CARDINAL to CARDINAL cases per CARDINAL , those with blood and haematogenic diseases from CARDINAL cases per CARDINAL , and those with skin diseases from CARDINAL to CARDINAL cases per CARDINAL . The decree also noted that the high level of atmospheric pollution accounted for the increase in respiratory and blood diseases among the city 's adult population and the increased number of deaths from cancer .", "Most of the measures proposed in the programme concerned the functioning of the Severstal steel plant . The decree also enumerated a number of measures concerning the city as a whole : these included the resettlement of CARDINAL people from ORG 's sanitary security zone . It transpires from the programme that the ORG was supposed to be the main source of funding for such resettlement . However , it seems that in subsequent DATE ORG continued to pay for the resettlement of the zone 's inhabitants , at least as regards districts nos . CARDINAL and CARDINAL . Thus , according to Decree no . CARDINAL by the mayor of GPE dated DATE , in DATE the residents of the blocks of flats situated on FAC were resettled in another district of the city . According to a letter of DATE from the mayor of GPE , ORG funded CARDINAL of the cost of resettlement .", "On DATE the chief sanitary inspector for GPE decided that the width of the sanitary security zone should be QUANTITY from the main sources of industrial pollution . However , no specific boundaries were identified for the zone . In DATE the municipality challenged its own Decree no . CARDINAL of DATE , which had established the zone 's boundaries ( see paragraph CARDINAL above ) . On DATE the ORG declared Decree no . CARDINAL invalid on the ground that it was ultra vires . ORG ruled that at the relevant time the municipality had not had jurisdiction to define the width of the zone . The boundaries of the sanitary security zone around the Severstal facilities currently remain undefined .", "In DATE implementation of the DATE government programme was discontinued and the measures proposed in it were included in the corresponding section of the sub - programme “ Regulation of environmental quality ” in the special federal programme “ GPE 's ecology and natural resources ( DATE ) ” .", "According to a letter from the mayor of GPE dated DATE , in DATE the plant was responsible for PERCENT of industrial emissions into the town 's air . According to ORG on ORG , the ORG plant in GPE was the largest contributor to air pollution of all metallurgical plants in GPE .", "NORP In DATE the applicant , with her family and various other residents of the block of flats where she lived , brought a court action seeking resettlement outside the zone . The applicant claimed that the concentration of toxic elements and the noise levels in the sanitary security zone exceeded the maximum permissible limits established by NORP legislation . The applicant alleged that the environmental situation in the zone was hazardous for humans , and that living there was potentially dangerous to health and life . In support of her claims she relied mainly on the city planning regulations of DATE ( see “ Relevant domestic law and practice ” below ) . According to the applicant , these regulations imposed an obligation on the plant 's owners to implement various ecological measures in the zone , including the resettlement of residents in an ecologically safe area . The applicant claimed that ORG had failed to fulfil this obligation .", "On DATE the ORG examined the applicant 's action . The court recognised that the building at LOC , where she lived , was located within ORG 's sanitary security zone . The court noted that , prior to DATE , the applicant 's flat had been owned by ORG , which had also owned the plant . Following privatisation of the plant in DATE , it had become a privately owned entity and the applicant 's flat had become the property of the local authorities . Referring to the ministerial decree of DATE , the court found that the authorities ought to have resettled all of the zone 's residents but that they had failed to do so . In view of those findings , the court accepted the applicant 's claim in principle , stating that she had the right in domestic law to be resettled . However , no specific order to resettle the applicant was given by the court in the operative part of its judgment . Instead , the court stated that the local authorities must place her on a “ priority waiting list ” to obtain new local authority housing ( see “ Relevant domestic law and practice ” below ) . The court also stated that the applicant 's resettlement was conditional on the availability of funds .", "The applicant appealed , claiming that the obligation to resettle was on the plant rather than on the municipality . She also maintained that the court had distorted the object of her claim : whereas she had been seeking immediate resettlement , the court had ordered that she be placed on a waiting list . In the applicant 's view , this decision was unworkable because its enforcement depended on too many conditions ( the existence of a resettlement order , the number of people on the waiting list , the availability of funds for resettlement , etc . ) .", "On DATE ORG upheld in principle the decision of DATE , and confirmed that the applicant 's home was located within the Severstal steel plant 's sanitary security zone . The appeal court further found that the applicant 's resettlement in an ecologically safe area was to be carried out by the municipality . Finally , the appeal court excluded from the operative part of the judgment the reference to the availability of funds as a precondition for the applicant 's resettlement .", "The first - instance court issued an execution warrant and transmitted it to a bailiff . However , the decision remained unexecuted for a certain period of time . In a letter of DATE , the deputy mayor of GPE explained that enforcement of the judgment was blocked , since there were no regulations establishing the procedure for the resettlement of residents outside the zone .", "On DATE the bailiff discontinued the enforcement proceedings on the ground that there was no “ priority waiting list ” for new housing for residents of the sanitary security zone .", "In DATE the applicant brought a fresh action against the municipality , seeking immediate execution of the judgment of DATE . The applicant claimed , inter alia , that systematic toxic emissions and noise from ORG facilities violated her basic right to respect for her private life and home , as guaranteed by LAW and LAW . She asked to be provided with a flat in an ecologically safe area or with the means to purchase a new flat .", "On DATE the municipality placed the applicant on the general waiting list for new housing . She was no . CARDINAL on that list ( see “ Relevant domestic law and practice ” below ) .", "On DATE ORG dismissed the applicant 's action . It noted that there was no “ priority waiting list ” for the resettlement of residents of sanitary security zones , and no council housing had been allocated for that purpose . It concluded that the applicant had been duly placed on the general waiting list . The court held that the judgment of DATE had been executed and that there was no need to take any further measures . That judgment was upheld by ORG on DATE .", "The ORG authorities conduct regular inspections of air quality in the city . Pollution is monitored by CARDINAL stationary posts of ORG for ORG , including CARDINAL ( post no . CARDINAL ) situated at CARDINAL FAC , QUANTITY from the applicant 's home . The emission levels of CARDINAL hazardous substances are monitored by the authorities ( nitrogen dioxide , ammonia , carbon oxide , dust , hydrogen sulphide , carbon disulphide , phenol , formaldehyde , sulphur dioxide , nitric oxide , manganese , benzopyrene and lead ) . CARDINAL stationary posts of ORG for ORG monitor emissions of only DATE of the above substances ; additionally , post no . CARDINAL monitors emissions of sulphur dioxide , nitric oxide , lead , benzopyrene and manganese , and post no . CARDINAL monitors emissions of benzopyrene , manganese and sulphur dioxide . In addition , ORG for ORG conducts regular air tests at distances of CARDINAL , CARDINAL , DATE , DATE , and QUANTITY from the steel plant . Finally , ORG has its own monitoring system , which evaluates emissions from every separate industrial facility at the plant .", "It appears that the basic data on air pollution , whether collected by the ORG monitoring posts or PERSON , are not publicly available . Both parties produced a number of official documents containing generalised information on industrial pollution in the town . The relevant parts of these documents are summarised in the following paragraphs and in the appendix to this judgment .", "The applicant claimed that the concentration of certain toxic substances in the air near her home constantly exceeded and continues to exceed the safe levels established by NORP legislation . Thus , in the period from DATE to DATE the average DATE concentration of dust in the air in the ORG plant 's sanitary security zone was CARDINAL times higher than the ORG , the concentration of carbon disulphide was CARDINAL times higher and the concentration of formaldehyde was CARDINAL to CARDINAL times higher ( data reported by ORG ) . ORG for ORG reported that the level of atmospheric pollution within the zone during the period from DATE was rated as “ high ” or “ very high ” . ORG for ORG confirmed that an excessive concentration of other hazardous substances , such as hydrogen sulphide and ammonia , was also registered during this period .", "As regards DATE , the applicant submitted a report prepared by ORG of ORG for ORG and ORG . This report stated , inter alia , that in DATE the DATE average concentration of dust near the applicant 's home was CARDINAL times higher than the ORG , and that the short - term peak concentration of dust was twice as high as the ORG . In DATE an over - concentration of carbon oxide was registered near the applicant 's home : the short - term peak concentration of this element was CARDINAL times higher than the ORG . The agency also reported that the average DATE concentration of formaldehyde in the town was CARDINAL times higher than the ORG . The average DATE concentration of carbon disulphide near the applicant 's home was CARDINAL times higher than the MPL . The short - term peak concentration of phenols was CARDINAL times higher than the ORG , and that of hydrogen sulphide was CARDINAL times higher .", "The applicant also submitted information published on the website of ORG of ORG for ORG . This source reported that in DATE the concentration of formaldehyde in GPE exceeded the norms . In DATE the DATE average concentration of formaldehyde was CARDINAL times higher than the MPL .", "The applicant further produced a study paper entitled “ Economic effectiveness of public health measures at ORG ” , drawn up by ORG , a public body established in DATE under the supervision of the then ORG . The study was commissioned by the GPE municipality in order to obtain an analysis of the cost - effectiveness of various measures suggested in the DATE federal programme . The expert team had access to data on CARDINAL polluting elements contained in industrial emissions from the Severstal plant . The experts singled out the CARDINAL most toxic elements and , using a special dispersion dissemination model , established how these elements affected the morbidity rate in the city . The experts then calculated how the implementation of one or another measure from the federal programme would reduce the concentration of these pollutants , and , consequently , to what extent the morbidity rate would decrease .", "NORP In DATE the applicant informed the ORG that further information on atmospheric pollution could be requested from the respondent Government . In particular , the applicant sought to obtain : ( a ) baseline emissions data for the Severstal plant , including data on the physical parameters of the stacks and the volume of chemicals emitted DATE by each process at the Severstal facility ; ( b ) dispersion modelling data for estimating the ambient air concentration of CARDINAL toxic pollutants at each of the x and y coordinate locations on the GPE city grid , based on the above emissions data . The applicant indicated that this information might be obtained from ORG ( see paragraph CARDINAL above ) . The applicant also sought data on the ambient air quality in GPE , obtained DATE as part of ORG in GPE , implemented with financial support from ORG . In DATE the ORG invited the respondent Government to submit the information sought by the applicant .", "In DATE the Government submitted a report entitled “ The environmental situation in GPE and its correlation with the activity of [ ORG ] during the period until DATE ” , prepared by the GPE municipality .", "According to the report , the environmental situation in GPE has improved in DATE : thus , gross emissions of pollutants in the town were reduced from QUANTITY in DATE to QUANTITY in DATE ( by PERCENT ) . Overall emissions from the ORG facilities were reduced during this period from CARDINAL to QUANTITY ( namely by PERCENT ) , and the proportion of unsatisfactory testing of atmospheric air at stationary posts fell from PERCENT to PERCENT in DATE .", "The report further stated that , according to data received from CARDINAL stationary posts of ORG for ORG , a substantial decrease in the concentration of certain hazardous substances was recorded in the period from DATE to DATE :", "( i ) dust : from TIME mg / m³ ( CARDINAL MPL ) to CARDINAL mg / m³ ( CARDINAL MPL ) ;", "( ii ) hydrogen sulphide : from QUANTITY / m³ ( CARDINAL MPL ) to QUANTITY / m³ ( CARDINAL MPL ) ;", "( iii ) phenols : from QUANTITY / m³ ( CARDINAL MPL ) to QUANTITY m³ ( CARDINAL MPL ) .", "According to the report , pollution in the vicinity of the applicant 's home was not necessarily higher than in other districts of the town . Thus , the concentration of nitrogen dioxide at post no . CARDINAL was QUANTITY / m³ in DATE , whereas it was QUANTITY / m³ at post no . CARDINAL , QUANTITY / m³ at post no . CARDINAL and QUANTITY mg / m³ at post no . CARDINAL . The average DATE concentration of ammonia registered at post no . CARDINAL was QUANTITY / m³ , QUANTITY / m³ at post no . CARDINAL , CARDINAL mg / m³ at post no . CARDINAL and QUANTITY mg / m³ at post no . CARDINAL . The phenol level registered at post no . CARDINAL was QUANTITY , QUANTITY / m³ at post no . CARDINAL and CARDINAL mg / m³ at post no . CARDINAL . Finally , the concentration of formaldehyde at post no . CARDINAL was QUANTITY / m³ , whereas it was QUANTITY / m³ at post no . CARDINAL , QUANTITY / m³ at post no . DATE and QUANTITY mg / m³ at post no . CARDINAL .", "NORP The report stated that the average annual concentrations of nitric oxide , lead , manganese , nitrogen dioxide , ammonia , hydrogen sulphide , phenol , carbon oxide and carbon disulphide did not exceed the MPLs . Excessive annual concentrations were recorded only with respect to dust , formaldehyde and benzopyrene . Over the period from DATE to DATE , a certain improvement in the quality of air was registered under the steel plant 's “ pollution plume ” in the residential area of the town . Thus , the proportion of unsatisfactory tests was PERCENT in DATE , whereas in DATE it had fallen to PERCENT . The report emphasised that the proportion of unsatisfactory air tests was decreasing : from PERCENT to PERCENT , as measured at a distance of QUANTITY from the plant ; and from PERCENT to PERCENT at a distance of QUANTITY . The trend was also positive in respect of certain specific substances : within QUANTITY the proportion of unsatisfactory tests for nitrogen dioxide decreased from PERCENT in DATE to PERCENT in DATE ; for hydrogen sulphide they fell from PERCENT in DATE to PERCENT in DATE ; and for phenol they decreased from PERCENT in DATE to PERCENT in DATE .", "The report contained generalised data on average pollution levels for DATE , collected from CARDINAL stationary posts of ORG for ORG . The ORG also produced data collected from monitoring post no . CARDINAL , reflecting a reduction in the average DATE and maximum pollution levels compared to the situation which existed DATE . The most important data contained in these reports are summarised in the appendix to this judgment .", "The Government also produced extracts from a report by the chief sanitary inspector for the GPE region , which was prepared in DATE for the purpose of defining new boundaries for the sanitary security zone . According to the report , PERSON was still responsible in DATE for PERCENT of overall air pollution in the city . The report stated that the emissions from ORG contained CARDINAL different pollutant substances . Despite a significant reduction in pollution in DATE , the maximum concentrations of “ CARDINAL priority pollutants ” ( dust containing PERCENT of silicon dioxide , ferroalloy dust , nitrogen dioxide , naphthalene and hydrogen sulphide ) still exceeded safety standards at distances of QUANTITY from the plant . The report further indicated that “ CARDINAL people live[d ] in a zone where the acceptable level of risk [ was ] exceeded ” . It proposed a number of measures which should reduce the concentration of naphthalene and ferroalloys to safe levels by DATE , and stated that the concentration of all toxic substances originating from the Severstal facilities in the bottom layer of the atmosphere should be below the maximum permissible limits by DATE .", "Finally , the ORG submitted that , should the ORG need the documents sought by the applicant and referred to by her representatives as a source of primary information on air pollution , “ the authorities of GPE propose that this document be requested from PERSON GPE [ CARDINAL of the applicant 's representatives ] ” .", "Since DATE Ms Fadeyeva has been supervised by the clinic at FAC no . CARDINAL . According to the Government , the applicant 's medical history in this clinic does not link the deterioration in her health to adverse environmental conditions at her place of residence .", "In DATE a medical team from the clinic carried out regular medical check - ups on the staff at the applicant 's place of work . As a result of these examinations , the doctors detected indications of an occupational illness in CARDINAL workers , including the applicant . In DATE the diagnosis was confirmed : a medical report drawn up by ORG in GPE on CARDINAL DATE stated that she suffered from various illnesses of the nervous system , namely occupational progressive / motor - sensory neuropathy of the upper extremities with paralysis of both middle nerves at the level of the wrist channel ( primary diagnosis ) , osteochondrosis of the spinal vertebrae , deforming arthrosis of the knee joints , moderate myelin sheath degeneration , chronic gastroduodenitis , hypermetropia first grade ( eyes ) and presbyopia ( associated diagnoses ) . Whilst the causes of these illnesses were not expressly indicated in the report , the doctors stated that they would be exacerbated by “ working in conditions of vibration , toxic pollution and an unfavourable climate ” .", "In DATE the applicant submitted a report entitled “ Human health risk assessment of pollutant levels in the vicinity of the Severstal facility in GPE ” . This report , commissioned on behalf of the applicant , was prepared by PERSON . PERSON concluded that he would expect the population residing within the zone to suffer from above - average incidences of odour annoyance , respiratory infections , irritation of the nose , coughs and headaches , thyroid abnormalities , cancer of the nose and respiratory tract , chronic irritation of the eyes , nose and throat , and adverse impacts on neurobehavioral , neurological , cardiovascular and reproductive functions . The report concluded as follows :", "“ The toxic pollutants found in excessive levels within the sanitary security zone in GPE are all gaseous pollutants specifically produced by iron and steel manufacturing plants ( in particular , by process units involved in metallurgical coke production ) , but not usually by other industrial facilities .", "It is therefore reasonable to conclude that inadequately controlled emissions from the Severstal facility are a primary cause of the excess incidences of the above - mentioned adverse health conditions of persons residing within the sanitary security zone in GPE . ”", "The applicant also submitted an information note from the environmental department of the GPE municipality , which contained recommendations to GPE residents on how to act in circumstances of “ unfavourable weather conditions ” , namely when the wind carried emissions from the Severstal plant towards the city . The note recommended that people should stay at home and restrict their physical activity . It also contained dietary suggestions . The primary reason for these restrictive recommendations was emissions from the Severstal plant . The applicant also referred to a letter dated DATE from the FAC , stating that when such “ unfavourable weather conditions ” occurred , admissions of children to local health clinics increased by CARDINAL .", "Article CARDINAL of the LAW of the Russian Federation reads as follows :", "“ Everyone has the right to a favourable environment , to reliable information about its state , and to compensation for damage caused to his health or property by ecological offences . ”", "Pursuant to LAW DATE on sanitary safety ( О санитарно-эпидемологическом благополучии населения ) , ORG establishes ORG standards for protecting public health from environmental nuisances . In particular , these standards are applied in assessing air quality in cities : atmospheric pollution is assessed in comparison to the maximum permissible limits ( MPLs ) , the measure which defines the concentration of various toxic substances in the air . It follows from LAW of LAW of DATE and LAW DATE that , if the MPLs are not exceeded , the air is safe for the health and well - being of the population living in the relevant area . Regulation CARDINAL of LAW provides that , for all categories of toxic elements , concentrations should not exceed CARDINAL MPL in residential areas and CARDINAL.CARDINAL MPL in recreational zones .", "Pursuant to LAW DATE ( ORG охране атмосферного воздуха ) , ORG establishes environmental standards for various types of polluting sources ( cars , farms , industrial plants , etc . ) . These general standards are applied to specific undertakings by the regional environmental agencies . In principle , an industrial plant 's operation should not result in pollution which exceeds the MPLs ( section CARDINAL of the Act ) . However , for the sake of a region 's economic development , a regional environmental agency may issue a temporary permit authorising an undertaking to exceed these norms ( sections CARDINAL and CARDINAL of the Act ) . The permit should contain a schedule for the phased reduction of toxic emissions to safe levels .", "Every polluting undertaking must create a “ sanitary security zone ” around its LOC – a buffer area separating sources of pollution from the residential areas of a city ( Regulations CARDINAL.CARDINAL and CARDINAL of the DATE LAW , enacted by Decree no . CARDINAL of ORG of DATE ; similar provisions were contained in DATE and DATE LAW , which replaced those of DATE ) . The levels of pollution in this buffer area may exceed the MPLs .", "The minimum width of the zone is defined by the sanitary regulations for different categories of undertaking . Under the terms of the DATE LAW , the sanitary security zone around a steel plant the size of Severstal should be QUANTITY . Under LAW of DATE , the width of the sanitary security zone for a metallurgical undertaking of this size should be QUANTITY . In certain cases ORG may enlarge the zone ( for example , where the concentration of toxic substances in the air beyond the zone exceeds the MPLs ) . Subsequent sanitary regulations ( enacted on DATE and DATE ) confirmed these requirements .", "Regulation CARDINAL.CARDINAL of the DATE ORG provides that an undertaking must take all necessary measures in order to set up ( обустроить ) its sanitary security zone in accordance with the law , with a view to limiting pollution .", "Regulation CARDINAL.CARDINAL of the DATE ORG provides that no housing should be situated within the sanitary security zone . This provision was later incorporated into LAW ( Градостроительный PERSON ) of DATE ( LAW ) and LAW of DATE and DATE . According to Regulation CARDINAL.CARDINAL.CARDINAL of the DATE LAW , a project to create a zone may include , as a high - priority objective , resettlement of the zone 's residents . However , there is no direct requirement to resettle the residents of the sanitary security zone around an undertaking that is already operating .", "Article CARDINAL § CARDINAL of LAW of DATE provides as follows :", "“ In cases where ORG or public interests require that economic or other activities be conducted in environmentally unfavourable areas , the temporary residence of the population in these areas is permitted , subject to the application of a special town planning regime ... ”", "It follows from a judgment of ORG ( decision no . ФCARDINAL - CARDINAL/CARDINAL of DATE ) that the authorities may force an undertaking which has failed to create a sanitary security zone around its LOC in accordance with the law to cease operating .", "The applicant produced an extract from the decision of ORG of GPE in PERSON v. ORG ( published in “ Overview of the case - law of the Supreme Court ” , ORG , № DATE , of DATE , § CARDINAL ) . In that case the plaintiff had claimed immediate resettlement from a decrepit house . The lower court had rejected the plaintiff 's action , indicating that she could claim resettlement following the order of priority ( in other words , she should be put on the waiting list ) . ORG quashed this judgment , stating as follows :", "“ The [ plaintiff 's ] home is not only dilapidated ... , but is also situated within QUANTITY of a railway , within the latter 's sanitary security zone , which is contrary to the sanitary regulations ( this zone is QUANTITY wide , and no residential premises should be located within it ) . ”", "ORG remitted the case to the first - instance court , ordering it to designate specific housing which should be provided to the plaintiff as a replacement for her previous dwelling .", "In another case , concerning the resettlement of PERSON , another resident of the sanitary security zone around the Severstal facilities , the ORG of ORG , in its decision of DATE , stated , inter alia :", "“ The lower court did not assess whether the measures taken in order to resettle the residents of the sanitary security zone are adequate in comparison to the degree of threat that the plaintiff encounters . As a result , the court did not establish whether providing PERSON with new housing under the provisions of the housing legislation by placing her on the waiting list can be regarded as giving her a real chance to live in an environment that is favourable for her life and health . ”", "The court also expressed doubts as to whether the ORG should be held responsible for the resettlement of the zone 's residents .", "During the NORP era , the majority of housing in GPE belonged to various public bodies or ORG - owned companies . The population lived in these dwellings as life - long tenants . In DATE extensive privatisation programmes were carried out . In certain cases , property that had not been privatised was transferred to local authorities .", "To date , a certain part of the NORP population continues to live as tenants in local council houses on account of the related advantages . In particular , council house tenants are not required to pay property taxes , the amount of rent they pay is substantially lower than the market rate and they have full rights to use and control the property . Certain persons are entitled to claim new housing from the local authorities , provided that they satisfy the conditions established by law .", "From a historical standpoint , the right to claim new housing was one of the basic socio - economic rights enshrined in NORP legislation . Under LAW of the RSFSR of DATE , which was still valid in GPE at the time of the relevant events , every tenant whose living conditions did not correspond to the required standards was eligible to be placed on a local authority waiting list in order to obtain new council housing . The waiting list establishes the priority order in which housing is attributed once it is available .", "NORP However , being on a waiting list does not entitle the person concerned to claim any specific conditions or time - frame from the State for obtaining new housing . Certain categories of persons , such as judges , policemen or handicapped persons are entitled to be placed on a special “ priority waiting list ” . However , it appears that NORP legislation does not guarantee a right to be placed on this special list solely on the ground of serious ecological threats .", "NORP Since NORP times , CARDINAL of NORP have been placed on waiting lists , which become longer DATE on account of a lack of resources to build new council housing . At present , the fact of being on a waiting list represents an acceptance by the ORG of its intention to provide new housing when resources become available . The applicant submits , for example , that the person who is first on the waiting list in her municipality has been waiting for new council housing since DATE . She herself became no . CARDINAL on that list in DATE ." ]

[ "8" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant was a journalist and the editor - in - chief of a newspaper named PERSON .", "On DATE a number of opposition parties held an unauthorised demonstration in GPE . The applicant , together with CARDINAL other journalists , was present at the demonstration to report on the events . The applicant was not wearing a special blue vest identifying him as a journalist , but he was wearing a journalist badge on his chest .", "During the dispersal of the demonstration by the police , the applicant and his colleagues were beaten up and received various injuries . According to the applicant , he told the police officers that he was a journalist and asked them to stop . The applicant was hit on the head and lost consciousness following his beating .", "The applicant was taken to hospital DATE . On DATE he received a medical certificate with a diagnosis of closed cranio - cerebral trauma , concussion and soft - tissue damage to the crown of the head .", "On DATE the applicant obtained a medical certificate from GPE Polyclinic no . DATE . That certificate indicated that the applicant had been registered as a patient diagnosed with closed cranio - cerebral trauma and concussion , and that his condition required long - term treatment .", "The CARDINAL journalists who had been beaten up on DATE lodged a joint criminal complaint . On DATE FAC instituted criminal proceedings under LAW ( beating ) of LAW . On DATE the case was re - qualified under LAW ( obstruction of the lawful professional activity of journalists ) of LAW and transferred to ORG .", "On DATE the applicant was questioned by the investigator in charge of the case . The applicant stated that he had been beaten with truncheons by a group of police officers while he was observing the demonstration as a journalist . The applicant also stated that he did not know the police officers who had hit him , although he did know the police officers who were in charge of the police unit . The applicant submitted a photo of an officer ( GPE ) who was the head of ORG of ORG . The applicant ’s version of the events was also confirmed by statements from CARDINAL other journalists , ORG , who were present at the relevant time at the place of the incident .", "According to the Government , on DATE the investigator ordered a forensic examination of the applicant , but the applicant did not appear for this examination . No copy of any decision in this respect was submitted by the Government to the ORG . The applicant alleged that he had not been informed of this decision by the investigator .", "By a letter of DATE , the investigator in charge of the case requested ORG to identify the police officers who had hit the applicant . In reply to the investigator ’s letter , on DATE the Head of ORG wrote that they had not been able to identify the relevant police officers , however they would continue to take measures in this respect and inform the investigator of any result .", "On DATE the investigator heard GPE , who denied involvement in the applicant ’s beating . PERSON stated that neither he nor the police officers under his supervision had done anything unlawful to the applicant in his presence .", "On DATE ORG investigator issued a decision suspending the criminal proceedings until the perpetrators of the beating had been identified . The investigator relied on the fact that the police officers allegedly involved in the applicant ’s beating had not been identified . As to GPE ’s alleged involvement , the investigator relied on ORG statements , noting that the latter had not carried out any unlawful actions against the applicant .", "The applicant was not provided with any information concerning the criminal investigation until DATE . On DATE the applicant contacted ORG investigator and inquired about the state of the proceedings . The investigator informed him that the criminal investigation had been suspended on DATE , but did not provide the applicant with a copy of the decision suspending the investigation .", "On DATE the applicant lodged a complaint with ORG . He complained that the investigator had failed to provide him with a copy of the decision suspending the investigation , thus making it impossible for him to lodge a proper complaint against it . He also asked the court to quash this decision and remit the case for investigation . He insisted , in particular , that the group of police officers who had hit him had been under GPE ’s command , and that the photo of GPE taken at the time of the incident had been submitted to the police .", "On DATE ORG dismissed the applicant ’s complaint , finding that the decision suspending the investigation had been lawful and had been sent to the applicant on DATE . The decision was silent as to ORG and his alleged role in the applicant ’s beating . It appears that the court did not hear any witness at the hearing .", "On DATE the applicant lodged an appeal reiterating his previous complaints . In particular , he argued that the suspension of the investigation , for which the reason given was that it was impossible to identify the policemen who had beaten him , was wrong , and that the investigation authorities knew who the perpetrators were . In this connection , he noted that he and other journalists had specifically identified GPE , who was present at the scene of the incident at the relevant time .", "On DATE ORG dismissed the applicant ’s appeal and upheld ORG decision of CARDINAL DATE .", "On DATE the applicant lodged a separate civil action against ORG , asking for compensation for pecuniary and non - pecuniary damage caused by his beating on DATE . He relied on Articles CARDINAL , CARDINAL of the Convention .", "On DATE ORG refused to admit the action for non - compliance with the formal requirements . The court held that the applicant had failed , in particular , to provide a forensic report showing the cause of the injuries and had not supplied a copy of any document showing that a police officer had been found responsible for the applicant ’s beating . The court also noted that the applicant had failed to identify actual individuals , rather than ORG in general , as defendants .", "On DATE the applicant appealed against the first - instance court ’s inadmissibility decision , reiterating his previous complaints .", "On DATE ORG upheld ORG decision of DATE .", "On DATE ORG upheld the decisions of the lower courts .", "Article CARDINAL ( III ) of LAW reads as follows :", "“ No one shall be subjected to torture or ill - treatment . No one shall be subjected to degrading treatment or punishment . ... ”", "Police officers may use special equipment when , inter alia , it is considered that a person who is behaving dangerously may cause damage to himself or people around him ( Article CARDINAL.II ) . “ Special equipment ” is defined as truncheons , arm - restraining instruments , tear gas , rubber bullets , water cannons and other means ( Articles CARDINAL ) . Physical force , special equipment or firearms may be used when absolutely necessary in a manner proportionate to the danger posed . The police authorities must carry out an inquiry into every incident involving the use of physical force , special equipment or firearms , and must issue a pertinent opinion on its lawfulness ( Article CARDINAL.VII ) . Unlawful use of force by a police officer entails the officer ’s responsibility under the relevant legislation ( LAW ) .", "Police officers may use physical force , special equipment or firearms only in the event of absolute necessity or necessary self - defence , after all other means of coercion have failed to produce the required result , and depending on the gravity of the offence and the character of the offender ( Article CARDINAL ) . Anyone injured as a result of the use of physical force , special equipment or firearms must be provided with the necessary medical aid ( Article CARDINAL ) . The police officer must report to the relevant police authority , in writing , on the occasions he or she used physical force , special equipment or firearms ( DATE . The relevant prosecutor must also be informed of any such use of force within TIME ( Article CARDINAL.I.CARDINAL ) ." ]

[ "10", "3" ]

[ "10-1" ]

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[ "The first applicant , Mr PERSON , was born in DATE and lives in ORG . The second applicant , Mr PERSON , was born in DATE and lives at FAC . The third applicant , Mr PERSON Sarandis , was born in DATE and lives in PERSON .", "At the time of the events in question , the CARDINAL applicants were officers in the same unit of the NORP air force . They were all followers of ORG , a NORP Christian denomination which adheres to the principle that it is the duty of all believers to engage in evangelism .", "In the evidence he gave for the purposes of the prosecution against the applicants ( see paragraph CARDINAL below ) , airman PERSON said that he was transferred to the ORG unit in DATE , DATE after joining the air force , and was placed under the command of the second applicant in the teletyping service . On CARDINAL occasions the first and second applicants engaged him in religious discussions , reading aloud extracts from the Bible and encouraging him to accept the beliefs of ORG . The second applicant told him that some members of the sect were able to speak in foreign languages with the assistance of divine power . Whenever airman PERSON returned from leave , the second applicant asked him if he had visited ORG . The former testified that he felt obliged to take part in these discussions because the applicants were his superior officers .", "NORP In his statement before ORG ( see paragraph CARDINAL below ) , airman PERSON testified that he served in the ORG unit DATE and DATE , although he was not under the direct command of any of them . During that time the first applicant engaged him in theological discussions on TIME occasions , and the third applicant on CARDINAL occasions , initially concealing the fact that they were not NORP but subsequently criticising some of the tenets of that faith and urging airman NORP to accept their beliefs . The third applicant repeatedly asked him to visit ORG in PERSON while he was on leave , telling him that miracles took place there including the acquisition by believers of the ability to speak in foreign languages , and gave him the NORP newspaper ORG to read . The applicants were very good officers and were always polite to him , but their approaches bothered him nonetheless .", "Airman PERSON was unable to give evidence at the first- instance hearing because his wife was ill , but he told ORG ( see paragraph CARDINAL below ) that he had served in the same unit as the applicants , under the command of the third applicant , DATE and DATE . The applicants did not put any pressure on him to become a member of ORG . He himself approached the third applicant and asked why he was so peaceful , to which the latter replied that this was the result of reading the Gospel . When , at the suggestion of the first and third applicants , he started to read the Bible , he noticed a number of points of divergence between it and the teachings of ORG . He did not have any discussions with the applicants concerning the NORP and ORG , although he did seek their advice whenever he had any questions concerning the Bible and always found their replies convincing . They never gave him any NORP literature or told him to go to ORG . The third applicant never authorised his absence for purposes related to ORG , which he had visited for the first time in DATE , after he had been discharged from the armed forces .", "PERSON father , PERSON PERSON , told the first - instance court that his son had been converted from the NORP to ORG while serving in the air force under the orders of the third applicant . According to his father , shortly after he joined the unit his behaviour changed . He stopped seeing his friends , spent long periods of time in his room studying the Bible and listening to taped sermons and brought back from the barracks his television and radio sets and the books from which he used to study for university entrance examinations . He told his father that he had met CARDINAL officers who were real NORP , unlike his father . When his parents followed him on CARDINAL of his visits to ORG , he left home and went to live in GPE . He returned after DATE , when he reconverted to ORG , explaining to his father that the first and third applicants had converted him to ORG , taking advantage of their rank to exert pressure on him and using special skills of persuasion . They had told him that he would be given leave of absence if he promised to visit their church . When PERSON left to go on a trip , PERSON reconverted to ORG . His father concluded that his son had no will of his own and always did as he was told by other members of ORG .", "According to the statement of Captain PERSON , his brother - in - law , Mr ORG , a member of ORG , began DATE to rage at his wife , telling her that he saw Satan in her . The second applicant was summoned , and as soon as he arrived Mr PERSON became calmer . The second applicant then preached a sermon to the members of the Baïramis family and some neighbours who had come to see what was going on , in the course of which he urged them all to convert to the NORP religion .", "NORP In a statement prepared for the purposes of an administrative inquiry against the applicants , PERSON explained that her husband had joined ORG , which led to the breakdown of her family life with him . In an attempt to understand her husband ’s behaviour , PERSON visited ORG and the applicants’ homes on several occasions over a period of DATE . During this time the applicants , particularly the second and third applicants , used to visit her and urge her to join their ORG . They told her that they had received signs from God and could predict the future , and that PERSON and her children were possessed by the devil . Eventually she developed psychological problems and severed all links with the applicants and ORG .", "On DATE , the applicants appeared before ORG ( PERSON ) in GPE , composed of CARDINAL officer with legal training and CARDINAL other officers . They were tried for various offences of proselytism , under section CARDINAL of Law no . CARDINAL as amended ( henceforth , “ section CARDINAL ” – see paragraph CARDINAL below ) .", "In a decision delivered on DATE of the hearing ( no . CARDINAL ) , the court rejected the defence ’s argument that the law against proselytism was unconstitutional , finding that no issue could arise under the principle nullum crimen sine lege certa because of the non - exhaustive enumeration in the statute of the means by which an intrusion on another person ’s religious beliefs could be brought about . It found all CARDINAL applicants guilty of proselytism , holding in particular as follows .", "In respect of the first applicant , the court observed :", "“ The accused , while he was a military officer ... serving in Unit X , committed the offence of proselytism in the military camp of this unit DATE by engaging in several acts which … gave rise to a single , albeit continuing , breach of the relevant criminal provision . He acted with the aim of intruding on and changing the religious beliefs of airman PERSON , an NORP who served in the same unit . Abusing the trust placed in him by airman PERSON , who was his hierarchical subordinate , the accused tried on CARDINAL occasions to persuade airman PERSON to become a member of the sect of ORG by engaging in discussions on theology with him in the course of which the accused contested the correctness of the teachings of the university department of theology concerning PERSON and the NORP dogma . He also encouraged airman PERSON to read the Bible in the light of the accused ’s own beliefs as a member of ORG , questioned the holy traditions and recommended that he visit the church of the NORP sect in GPE .", "ORG Acting in the same capacity , the accused committed the offence of proselytism DATE by engaging in several acts which … gave rise to a single , albeit continuing , breach of the relevant criminal provision . He acted with the aim of intruding on and changing the religious beliefs of airman PERSON , NORP who served in the same unit . On CARDINAL occasions the accused tried to persuade airman NORP to become a member of the sect of the Church of GPE by engaging , persistently and importunately , in discussions with him about the correctness of his beliefs as a member of the sect of ORG , questioning the holiness of ORG and inviting airman PERSON to listen to taped recordings on the beliefs of the NORP sect . The accused took advantage of the trust inherent in the relationship between a subordinate and a superior and of airman NORP ’s naïvety , inexperience and youth , telling him that in his ORG some people started speaking foreign languages under the effect of the Holy Spirit .", "Acting in the same capacity , the accused committed the offence of proselytism DATE and DATE , in the place mentioned above , by … acting with the aim of intruding on and changing the religious beliefs of airman PERSON GPE , who served under his orders in the same unit . Taking advantage of the trust inherent in the relationship between a subordinate and a superior , and of the young man ’s naïvety and inexperience , the accused tried to persuade airman PERSON to become a member of the sect of the Church of GPE by continually , persistently and importunately expounding on his beliefs concerning the sect of ORG , reading and explaining the Bible in the light of his beliefs and providing him with copies of a tract entitled PERSON . The accused succeeded in converting airman PERSON by taking advantage of the latter 's inexperience in theological matters and the influence he had on him due to his position and rank . ”", "The court also found the first applicant guilty of proselytising another airman , PERSON .", "It sentenced him to CARDINAL months’ imprisonment for proselytising airman PERSON , DATE months’ imprisonment for proselytising airman PERSON , CARDINAL months’ imprisonment for proselytising airman PERSON and CARDINAL months’ imprisonment for proselytising airman PERSON . Overall , however , because some of these periods were to run concurrently , the first applicant was ordered to spend DATE in prison . The court ordered that these penalties be converted to fines and not enforced provided the applicant did not commit new offences in the following DATE .", "In respect of the second applicant , the court held as follows :", "“ The accused , while he was a military officer ... serving in Unit X , committed the offence of proselytism in the military camp of this unit DATE by engaging in several acts which … gave rise to a single , albeit continuing , breach of the relevant criminal provision . He took advantage of the authority exercisable by him due to the difference in rank over airman PERSON , who served in the same unit . On CARDINAL occasions , on dates which have not been specified , the accused tried to intrude on and change the religious beliefs of airman PERSON by means of skilful discussions with him concerning religion . The accused urged airman PERSON , because of his youth , to study nothing but the PERSON , where he told him he would find the truth , which differed from the NORP dogma . He also tried , by means of skilful interpretation of extracts from ORG in accordance with the beliefs of the sect of the GPE , to convince him that the NORP faith was not correct and that he should adopt the beliefs of the accused , urging him at the same time in a pressing manner to visit during his leave the church of the NORP sect in GPE .", "The accused also committed the offence of proselytism in PERSON in DATE by … taking advantage of the inexperience and intellectual weakness of PERSON Zounara . He tried on several occasions , on dates which have not been specified , to intrude on and change her religious beliefs by engaging in a skilful analysis of the beliefs of the sect of the GPE and their difference from those of the NORP faith . Elaborating on the correctness of the former , he tried persistently to convince her that the followers of ORG bore marks given to them by PERSON , that they could prophesy the future , that she and her children were possessed by the devil who was fighting to keep control over her , that she worshipped idols and demons and that ORG held the truth . He also urged her in a pressing manner to be baptised and become a member of ORG .", "The accused also committed the offence of proselytism in PERSON on a date which has not been specified towards DATE . Having been summoned by Captain PERSON , the accused went to the house of PERSON PERSON , Captain Baïramis ’s brother , where Mr GPE , the brother - in - law of the Baïramis brothers and a follower of the sect of ORG , was in a delirious state under the influence of his religious beliefs . He was foaming at the mouth , invoking NORP ’s name and saying ‘ Thank you Christ , because I have known the truth , I see the devil in my wife ’s and children ’s faces’ . The mere fact of the accused ’s presence calmed Mr ORG , and the former skilfully took advantage of this by attempting to intrude upon and change the religious beliefs of PERSON Baïramis and PERSON , PERSON and PERSON , who were present during the incident and had been impressed by it , and of a number of neighbours who gathered afterwards . He preached to them , elaborating on the beliefs of the sect of ORG and telling them that these , and not those of ORG , were correct and that in DATE the world would come to an end and the ORG would be ‘ captured’ . He urged them persistently and importunately to believe in the true NORP and told them that , by virtue of being NORP , they had taken sides with the devil . ”", "The second applicant was sentenced to CARDINAL months’ imprisonment for proselytising airman PERSON , DATE months’ imprisonment for proselytising PERSON , and CARDINAL months’ imprisonment for proselytising the Baïramis family and their neighbours , although he was only to serve DATE overall . The court ordered that these penalties be converted to fines and not enforced provided the applicant did not commit new offences in the following DATE .", "In respect of the third applicant , the court held as follows :", "“ The accused , while he was a military officer ... serving in Unit X , committed the offence of proselytism in the military camp of this unit DATE by engaging in several acts which … gave rise to a single , albeit continuing , breach of the relevant criminal provision . He acted with the aim of intruding on and changing the religious beliefs of airman PERSON , NORP who served in the same unit . Taking advantage of the trust inherent in the relationship between a subordinate and a superior , the accused tried CARDINAL times to convince airman NORP that the teachings of the NORP faith were not correct on a number of issues , such as the virginity of ORG , the ranks of the priests and the power of the Holy Spirit . He engaged with airman NORP in persistent and importunate discussions regarding the teachings of the sect of ORG , of which the accused was a follower , telling him that the teachings of the sect , rather than those of ORG , were correct . He urged him to visit a place in PERSON where the followers of ORG used to gather and to become a member of the sect and he gave him a free copy of a periodical published by the followers of ORG Christianismos . In the course of these encounters the accused intentionally failed to reveal to airman NORP that he was a member of the NORP sect .", "Acting in the same capacity , the accused committed the offence of proselytism in the same place for a period of DATE , … acting with the aim of intruding on and changing the religious beliefs of PERSON NORP , an NORP . He skilfully took advantage of her inexperience in religious matters and her intellectual weakness , resulting from her low level of education , and tried importunately to persuade her to be baptised and become a member of the sect of ORG . He told her constantly that he bore signs given to him by God , that he could foresee the future and that she and her children were possessed . His intention was to undermine her faith in Orthodoxy and convert her to the sect of ORG .", "Acting in the same capacity , the accused committed the offence of proselytism in the same place DATE and DATE , … acting with the aim of intruding on and changing the religious beliefs of airman PERSON , an NORP who served in the same unit . Taking advantage of the trust inherent in the relationship between a subordinate and a superior and of airman PERSON ’s naïvety and inexperience , the accused tried to persuade him to adhere to the sect of ORG . He engaged in continual , persistent and importunate analysis of his beliefs regarding the sect of ORG , continually reading the PERSON which he interpreted in accordance with his beliefs . He gave airman PERSON publications of his sect and took him to his place of worship . In this way , he succeeded in converting airman PERSON , taking advantage of his inexperience in religious matters and the influence he had on him because of his position and rank . ”", "The court also found that the third applicant had engaged in the proselytising of a warrant officer , Adjutant PERSON Tsikas .", "He was sentenced to CARDINAL months’ imprisonment for proselytising airman PERSON , CARDINAL months’ imprisonment for proselytising PERSON , CARDINAL months’ imprisonment for proselytising ORG CARDINAL months’ imprisonment for proselytising airman PERSON . He was to serve DATE overall . The court ordered that these penalties be converted to fines and not enforced provided the applicant did not commit new offences in DATE .", "The applicants appealed immediately to ORG ( PERSON ) , a court composed of CARDINAL military judges . Their appeal was heard on DATE .", "In a judgment pronounced immediately after the hearing ( no . CARDINAL ) , ORG rejected the defence ’s argument to the effect that the accused had merely exercised a constitutional right and upheld most of their convictions , using the same reasoning as the first- instance court . It did , however , reverse the conviction of the first applicant for proselytising airman PERSON and that of the third applicant for proselytising Adjutant PERSON ( see paragraphs CARDINAL and CARDINAL above ) .", "ORG maintained the penalties imposed by the first - instance court on the first and third applicants in respect of the convictions it had upheld . However , because of the quashing of the CARDINAL convictions , their overall sentences were reduced to TIME respectively .", "It reduced the second applicant ’s sentence to CARDINAL months’ imprisonment for proselytising airman PERSON , DATE for proselytising PERSON , and DATE for proselytising the Baïramis family and neighbours . His overall sentence was reduced to CARDINAL months’ imprisonment .", "As none of the overall sentences imposed involved DATE imprisonment , they were automatically converted by the court into pecuniary penalties of MONEY per day . The court ordered that the penalties should not be enforced provided that the applicants did not commit new criminal offences in DATE .", "The applicants appealed in cassation .", "In a judgment delivered on DATE ( no . DATE ) , ORG ( PERSON ) found as follows :", "“ It follows from section CARDINAL ) and ( CARDINAL ) of PERSON no . TIME [ see paragraph CARDINAL below ] that in order for the crime of proselytism … to be established , there must be a direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion with the aim of undermining those beliefs , provided that the attempt is made using the means enumerated in a non - exhaustive fashion in the above - mentioned section , namely by any kind of inducement or promise of an inducement or moral support or material assistance , or by fraudulent means or by taking advantage of the other person ’s inexperience , trust , need , low intelligence or naïvety .", "The above - mentioned provisions of this section … are not contrary to [ the provisions of LAW guaranteeing the principle nullum crimen , nulla poena sine lege ] ; moreover , they are perfectly consistent with LAW [ see paragraph CARDINAL below ] , which provides that all known religions are free since , under LAW , proselytism is prohibited … The argument to the contrary finds no support in the fact that under [ the previous Constitutions ] the prohibition of proselytism was designed to protect the then ( and still ) dominant religion , whereas under LAW that prohibition is associated with freedom of conscience in religious matters relating to all known religions . This reasoning is undeniably consistent with both the letter and the spirit [ of section CARDINAL ] , pursuant to which protection from proselytism employing the unlawful means set out therein is provided for the religious convictions of all persons of different persuasions ,", "i.e. all those belonging to a religion or dogma other than that of the author of the proselytism , and not exclusively those professing the principles of ORG .", "Furthermore , freedom of conscience in religious matters and of thought , protected as a human right by the present LAW and by Articles CARDINAL and CARDINAL of the United Nations’ Universal Declaration and Articles CARDINAL and CARDINAL of LAW , is not undermined by the above - mentioned criminal provision , since it does not sanction the holding of religious beliefs , which is completely free , but only any attempt to intrude on another person ’s religious beliefs with the aim of changing them . Such attempts are quite incompatible with religious freedom , which creates an obligation to respect the religious convictions of all those who hold different beliefs . ”", "The court therefore dismissed the ORG appeal .", "Article CARDINAL of LAW provides , as relevant :", "“ 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 . ”", "Section CARDINAL of Law no . CARDINAL , as amended by PERSON no . CARDINAL/CARDINAL , provides as follows :", "“ CARDINAL . Anyone engaging in proselytism shall be liable to imprisonment and a fine of CARDINAL ; he shall , moreover , be subject to police supervision for a period of DATE to be fixed by the court when convicting the offender .", "By ‘ proselytism’ is meant , in particular , any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion ( eterodoxos ) , with the aim of undermining those beliefs , either by any kind of inducement or promise of an inducement or moral support or material assistance , or by fraudulent means or by taking advantage of the other person ’s inexperience , trust , need , low intellect or naïvety .", "The commission of such an offence in a school or other educational establishment or philanthropic institution shall constitute a particularly aggravating circumstance . ”", "There is a considerable body of case - law interpreting and applying this section : see the ORG ’s Kokkinakis v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL , pp . CARDINAL , § § CARDINAL–CARDINAL .", "In their applications lodged with the ORG on DATE ( nos . CARDINAL , CARDINAL and ORG ) , PERSON , Mr PERSON and Mr Sarandis claimed that section CARDINAL of PERSON no . DATE was too broad and vague to be compatible with the requirements of legal certainty under Articles CARDINAL , CARDINAL § QUANTITY of the Convention . In addition , they complained that their convictions for proselytism amounted to violations of their rights to freedom of religion and expression under Articles CARDINAL and CARDINAL of the LAW , and were discriminatory , contrary to Article CARDINAL taken in conjunction with Article CARDINAL .", "On DATE , the ORG ordered the joinder of the CARDINAL applications under Rule CARDINAL of its Rules of Procedure and declared them admissible .", "In its report of CARDINAL DATE ( Article DATE ) , the Commission expressed the opinion that there had been violations of LAW in so far as the second applicant was convicted of proselytising the Baïramis family and their neighbours ( unanimously ) and in so far as the second and third applicants had been convicted of proselytising PERSON ( CARDINAL votes to CARDINAL ) . However , it found no violation of LAW in so far as the first and second applicants were convicted of proselytising airman PERSON and the first and third applicants were convicted of proselytising airman LANGUAGE ( CARDINAL votes to one ) , and in so far as the first and third applicants were convicted of proselytising airman PERSON ( CARDINAL votes to CARDINAL ) .", "It further concluded that there had been no violation of LAW ( CARDINAL votes to one ) and that no separate issue arose under LAW ( unanimously ) nor under LAW in conjunction with LAW in so far as the second applicant was convicted of proselytising the Baïramis family and neighbours and the second and third applicants were convicted of proselytising PERSON ( unanimously ) . Finally , it concluded that there had been no violation of Articles CARDINAL and CARDINAL taken together in so far as the first and second applicants were convicted of proselytising airman PERSON and the first and third applicants were convicted of proselytising airmen NORP and PERSON ( unanimously ) .", "The full text of the ORG ’s opinion and of the CARDINAL separate opinions contained in the report is reproduced as an annex to this judgment .", "In their memorial and at the hearing before the ORG , the ORG maintained that no violation of the LAW had arisen in the applicants’ case .", "The applicants , however , asked the ORG to find violations of ORG CARDINAL , CARDINAL , DATE and CARDINAL of the LAW and to award them just satisfaction under LAW .", "The applicants contended that the law against proselytism failed to comply with LAW , which provides :", "“ CARDINAL . CARDINAL shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed . Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed .", "This Article shall not prejudice the trial and punishment of any person for any act or omission which , at the time when it was committed , was criminal according to the general principles of law recognised by civilised nations . ”", "They argued that the NORP law violated the principle enshrined in LAW that only the law can define a crime and prescribe a penalty ( nullum crimen , nulla poena sine lege ) , since it was impossible to predict whether certain types of behaviour would lead to a prosecution for proselytism . They contended that this deficiency in the law was evident both from the text of section MONEY ) ( see paragraph CARDINAL above ) and the jurisprudence which had arisen from it .", "For example , the use of the words “ in particular ” implied that the subsequent definition was CARDINAL form of proselytism punishable under the statute , and other expressions employed , such as “ direct or indirect ” and “ any kind of inducement or promise of an inducement or moral support or material assistance ” were so broad and vague as to embrace almost any form of practical evangelism . The case - law which had grown out of section CARDINAL ( see the examples set out in the ORG ’s ORG v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) , showed that no one in GPE could possibly determine in advance whether or not his religious actions would constitute the offence of proselytism .", "The Government and the Commission , referring to the above - mentioned ORG judgment , were both of the opinion that there had been no violation of this provision .", "The ORG recalls its finding in the above - mentioned ORG case ( op . cit . , p. CARDINAL , § CARDINAL ) that the definition of the offence of proselytism contained in section CARDINAL , together with the settled body of national case - law interpreting and applying it , satisfied the conditions of certainty and foreseeability prescribed by LAW .", "It is not persuaded that the position in NORP law has become any less clear in DATE since that evaluation . Bearing in mind that the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which , to a greater or lesser extent , are vague ( ibid . , p. CARDINAL , § CARDINAL ) , it sees no reason to reverse its previous decision .", "It follows that there has been no violation of LAW .", "The applicants claimed that their prosecution , conviction and punishment for proselytism amounted to violations of LAW , which states :", "“ CARDINAL . Everyone has the right to freedom of thought , conscience and religion ; this right includes freedom to change his religion or belief and freedom , either alone or in community with others and in public or in private , to manifest his religion or belief , in worship , teaching , practice and observance .", "Freedom to manifest one ’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a NORP society in the interests of public safety , for the protection of public order , health or morals , or for the protection of the rights and freedoms of others . ”", "ORG denied that there had been any such breach . The ORG found that there had been no violation with regard to the measures taken against the applicants for the proselytising of the airmen , although it found that LAW had been violated in so far as the proselytising of civilians was concerned ( see paragraph CARDINAL above ) .", "The ORG must consider whether the applicants’ Article CARDINAL rights were interfered with and , if so , whether such interference was “ prescribed by law ” , pursued a legitimate aim and was “ necessary in a NORP society ” within the meaning of LAW .", "The ORG considers , and indeed it was not disputed by those appearing before it , that the prosecution , conviction and punishment of the applicants for offences of proselytism amounted to interferences with the exercise of their rights to “ freedom … to manifest [ their ] religion or belief ” ( see the ORG judgment cited at paragraph CARDINAL above , p.CARDINAL , § CARDINAL ) .", "The applicants , for the same reasons they had advanced in support of a finding of violation of LAW ( see paragraph CARDINAL above ) , contended that the measures taken against them were not “ prescribed by law ” , as required by LAW .", "The Government and the Commission were of the contrary opinion , again relying on the ORG ’s Kokkinakis judgment .", "The ORG recalls that the expression “ prescribed by law ” in LAW , inter alia , that the law in question must be both adequately accessible to the individual and formulated with sufficient precision to enable him to regulate his conduct ( see , mutatis mutandis , ORG v. GPE ( no . CARDINAL ) judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , § DATE ) .", "It refers to its finding in the above - mentioned ORG case that the measures taken against that applicant under section CARDINAL were “ prescribed by law ” ( op . cit . , pp . CARDINAL–CARDINAL , § § CARDINAL–CARDINAL ) . As the ORG has already concluded in relation to LAW ( see paragraphs CARDINAL–CARDINAL above ) , it is not satisfied that the position in NORP law has changed subsequently or that it should depart from its earlier assessment for any other reason .", "In conclusion , the measures in question were “ prescribed by law ” within the meaning of LAW .", "The Government , with whom the ORG agreed , reasoned that the relevant action was taken against the applicants with the aim of protecting the rights and freedoms of others and also , as far as the measures taken following the proselytising of the airmen were concerned , with the aim of preventing disorder in the armed forces and thus protecting public safety and order .", "The applicants made no particular submission in this connection .", "CARDINAL", "The ORG emphasises at the outset that while religious freedom is primarily a matter of individual conscience , it also implies , inter alia , freedom to “ manifest [ one ’s ] religion ” , including the right to try to convince one ’s neighbour , for example through “ teaching ” ( ibid . , p. CARDINAL , § CARDINAL ) .", "Article CARDINAL does not , however , protect every act motivated or inspired by a religion or belief . It does not , for example , protect improper proselytism , such as the offering of material or social advantage or the application of improper pressure with a view to gaining new members for a ORG ( ibid . , p. CARDINAL , § CARDINAL ) .", "The ORG ’s task is to determine whether the measures taken against the applicants were justified in principle and proportionate . In order to do this , it must weigh the requirements of the protection of the rights and liberties of others against the conduct of the applicants ( ibid . , p. CARDINAL , § CARDINAL ) . Since different factors come into the balance in relation to the proselytising of the airmen and that of the civilians , it will assess the CARDINAL matters separately .", "The Government contended that the applicants had abused the influence they enjoyed as air force officers and had committed the acts in question in a systematic and repetitive manner . The measures taken against them were justified by the need to protect the prestige and effective operation of the armed forces and to protect individual soldiers from ideological coercion .", "The applicants submitted that the practice of evangelism within a superior / subordinate relationship could not without more be equated to an abuse of trust . They emphasised that the airmen were adults , able to die for their country , and that there was no evidence that the applicants had used their positions to coerce or override the wills of their subordinates . To interpret LAW so as to restrict evangelism to “ equals ” would be a severe limitation of religious freedom , both within the armed forces and in other contexts .", "The Commission found that the interference could be justified as ensuring that the CARDINAL airmen ’s religious beliefs were respected , in view in particular of the special character of the relationship between a superior and a subordinate in the armed forces , which rendered the subordinate more susceptible to influence in a variety of matters including religious beliefs .", "The ORG observes that it is well established that the Convention applies in principle to members of the armed forces as well as to civilians . Nevertheless , when interpreting and applying its rules in cases such as the present , it is necessary to bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces ( see the PERSON and Others v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , § DATE , and , mutatis mutandis , the PERSON v. GPE judgment of DATE , Reports of Judgments and Decisions CARDINAL-VII , pp . CARDINAL , § CARDINAL ) .", "In this respect , the ORG notes that the hierarchical structures which are a feature of life in the armed forces may colour every aspect of the relations between military personnel , making it difficult for a subordinate to rebuff the approaches of an individual of superior rank or to withdraw from a conversation initiated by him . Thus , what would in the civilian world be seen as an innocuous exchange of ideas which the recipient is free to accept or reject , may , within the confines of military life , be viewed as a form of harassment or the application of undue pressure in abuse of power . It must be emphasised that not every discussion about religion or other sensitive matters between individuals of unequal rank will fall within this category . Nonetheless , where the circumstances so require , GPE may be justified in taking special measures to protect the rights and freedoms of subordinate members of the armed forces .", "The ORG refers to the evidence adduced in the domestic proceedings ( see paragraphs CARDINAL–CARDINAL above ) .", "It notes that airmen PERSON and NORP testified that the applicants approached them on a number of occasions in order to persuade them to convert and to visit ORG . Mr PERSON stated that he felt obliged to take part in the discussions because the applicants were his superior officers , and PERSON ORG said that the applicants’ approaches bothered him . As the Commission found , there is no evidence that the applicants used threats or inducements . Nonetheless , it appears that they were persistent in their advances and that these CARDINAL airmen felt themselves constrained and subject to a certain degree of pressure owing to the applicants’ status as officers , even if this pressure was not consciously applied .", "The ORG notes that , contrary to the evidence given by his father at first instance , airman PERSON testified before ORG that the applicants did not apply any pressure to him to become a member of ORG and that he himself initiated the religious discussions that took place between them ( see paragraph CARDINAL above ) . However , ORG , having had the opportunity to assess the evidence , including Mr PERSON ’s demeanour and credibility , upheld the first - instance court ’s decision that the first and third applicants had unlawfully taken advantage of the influence they had over PERSON PERSON due to their position and rank ( see paragraphs CARDINAL , DATE and CARDINAL above ) . The ORG , considering that the domestic courts were better placed than itself to determine the facts of the case , and taking into account the matters referred to in paragraph CARDINAL above , is of the view that Mr PERSON , like the other CARDINAL airmen , must have felt to a certain extent constrained , perhaps obliged to enter into religious discussions with the applicants , and possibly even to convert to the NORP faith .", "CARDINAL", "It follows that there has been no violation of LAW with regard to the measures taken against the first applicant for the proselytising of airmen PERSON , NORP and PERSON , those taken against the second applicant for the proselytising of airman PERSON or those taken against the third applicant for the proselytising of airmen NORP and PERSON .", "The Government reminded the ORG that under section CARDINAL , only improper proselytism is punishable . They contended that the second and third applicants had systematically exploited the family problems and psychological distress suffered by the Baïramis family and PERSON and had thus applied unlawful pressure . Furthermore , the penalties imposed on them were not particularly onerous .", "The Commission , with whom the applicants agreed , considered that the circumstances leading to the conviction of the second and third applicants for proselytising the Baïramis family and PERSON were similar to those of the ORG case ( cited at paragraph CARDINAL above ) , in that the “ targets ” of the proselytism were not military personnel and the domestic courts established the defendants’ guilt by reciting the words of section CARDINAL without adequately explaining in what way the methods employed by the accused had been “ improper ” . It had not been satisfactorily demonstrated that their convictions on these counts were “ necessary in a NORP society ” .", "The ORG recalls that the second applicant was convicted under section CARDINAL for preaching on a single occasion to the Baïramis family and their neighbours , following an incident when he had managed to calm a member of the Baïramis family who was in a delirious state . Together with the third applicant , he was also convicted for the proselytising of PERSON , whom they had attempted to convert on a number of occasions during a period when she was experiencing marital problems ( see paragraphs DATE , DATE , DATE and CARDINAL above ) .", "The ORG finds it of decisive significance that the civilians whom the applicants attempted to convert were not subject to pressures and constraints of the same kind as the airmen .", "With regard to the Baïramis family and their neighbours , none of the evidence indicates that they felt obliged to listen to the applicant or that his behaviour towards them was improper in any way .", "As for PERSON , it was not disputed before the domestic courts that she initially sought out the applicants in an attempt to understand the reasons behind her husband ’s behaviour . Whilst it is clear that during the period she was in contact with them she was in a state of distress brought on by the breakdown of her marriage , the ORG does not find it established that her mental condition was such that she was in need of any special protection from the evangelical activities of the applicants or that they applied improper pressure to her , as was demonstrated by the fact that she was able eventually to take the decision to sever all links with ORG .", "CARDINAL", "It follows that there has been a violation of LAW with regard to the measures taken against the second applicant for the proselytising of the Baïramis family and their neighbours and those taken against the second and third applicants for the proselytising of PERSON .", "The applicants claimed that the measures taken against them had also interfered with their rights to freedom of expression , in breach of LAW , which states , as relevant :", "“ CARDINAL . Everyone has the right to freedom of expression . This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority …", "The exercise of these freedoms , since it carries with it duties and responsibilities , may be subject to such formalities , conditions , restrictions or penalties as are prescribed by law and are necessary in a NORP society , in the interests of national security , territorial integrity or public safety , for the prevention of disorder or crime , for the protection of health or morals , for the protection of the reputation or rights of others , for preventing the disclosure of information received in confidence , or for maintaining the authority and impartiality of the judiciary . ”", "The Commission , with whom the ORG agreed , found that no separate issue arose under this provision .", "Having regard to its scrutiny of this case in the context of LAW , the ORG also agrees that no separate issue arises in relation to LAW .", "The applicants alleged that they had been the victims of discrimination contrary to LAW , which provides :", "“ The enjoyment of the rights and freedoms set forth in [ the ] Convention shall be secured without discrimination on any ground such as sex , race , colour , language , religion , political or other opinion , national or social origin , association with a national minority , property , birth or other status . ”", "They contended that the law against proselytism was applied only to members of religious minorities in GPE , no follower of the ORG ever having been convicted of the offence under section CARDINAL .", "The Government made no particular submission in relation to this complaint .", "The Commission found that no separate issue arose under ORG CARDINAL and CARDINAL taken together in relation to the measures directed against the second and third applicants for the proselytising of the civilians . As far as the measures taken against the applicants for the proselytising of the airmen were concerned , since no material was provided to substantiate the complaint under ORG CARDINAL and CARDINAL , it reached a finding of no violation .", "The ORG notes that the applicants alleged in their memorial that the NORP law against proselytism was applied in a discriminatory manner . However , they have not produced any evidence to suggest that an officer in the armed forces who attempted to convert his subordinates to ORG in a manner similar to that adopted by the applicants would have been treated any differently . It follows that no violation of ORG CARDINAL and CARDINAL taken together has been established in connection with the proselytising of the airmen .", "Having found a violation of LAW with regard to the measures taken against the second and third applicants for the proselytising of the Baïramis family and PERSON , the ORG considers that no separate issue arises in that connection under ORG CARDINAL and CARDINAL taken together .", "The applicants requested just satisfaction under LAW , which provides :", "“ If the ORG finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention , and if the internal law of the said ORG allows only partial reparation to be made for the consequences of this decision or measure , the decision of the ORG shall , if necessary , afford just satisfaction to the injured party . ”", "The applicants sought MONEY ( GRD ) each to compensate them for moral and material prejudice . This was the amount that the ORG had awarded to Mr ORG in DATE ( op . cit . , p. CARDINAL , § CARDINAL ) .", "At the hearing before the ORG , the ORG submitted that , in the event of the ORG finding a violation , such finding would in itself constitute sufficient just satisfaction .", "On the same occasion , the ORG ’s ORG commented that the fact that the domestic courts had not sought to take the ORG ’s case - law into account was a particular element to be taken into consideration under LAW .", "The ORG observes that it has found violations of the LAW in respect only of the measures taken against the second applicant for the proselytising of the Baïramis family and the second and third applicants for the proselytising of PERSON ( see paragraphs CARDINAL–CARDINAL above ) . The first applicant is not , therefore , entitled to any just satisfaction under LAW .", "Making its assessment on an equitable basis , it awards LAW each to Mr Mandalarides and Mr Sarandis .", "The applicants also requested QUANTITY ( GBP ) to cover the legal costs and expenses of the proceedings before ORG in GPE .", "DATE . The Government considered the amount claimed to be excessive and submitted that the sum awarded should not exceed GRD CARDINAL .", "The ORG again notes in this context that it does not find any violation of the LAW in respect of the first applicant and that it finds in favour of the second and third applicants in connection with CARDINAL part of their complaints , namely in relation to the measures taken against them for the proselytising of civilians .", "In the light of the above , it awards to the second and third applicants part of the costs and expenses claimed , in total GBP CARDINAL , together with any value - added tax which may be payable , less the amount received by way of legal aid from ORG .", "According to the information available to the ORG , the relevant statutory rates of interest applicable at the date of adoption of the present judgment are PERCENT per annum in GPE and PERCENT per annum in GPE .", "Done in LANGUAGE and in LANGUAGE , and delivered at a public hearing in FAC , GPE , on DATE .", "Signed : PERSON", "President", "Signed : PERSON", "Registrar", "In accordance with LAW , the following separate opinions are annexed to this judgment :", "PERSON : PERSON", "PERSON : PERSON" ]

[ "9" ]

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[ "14", "7", "9" ]

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[ "The applicants , PERSON ( “ the first applicant ” ) and PERSON ( “ the second applicant ” ) , were born in DATE and DATE respectively and live in GPE .", "On DATE the first applicant gave birth to the second applicant , born out of wedlock .", "On DATE ORG in GPE ruled that PERSON , from GPE , was the father of the second applicant and ordered him to pay child maintenance .", "On DATE ORG ( Okružni sud ) in GPE ) confirmed ( priznao ) the decision of ORG . It would appear that enforcement of this judgment has never been sought .", "On an unspecified date the second applicant instituted proceedings against PERSON seeking child maintenance . As she was a minor at the time she was represented by the first applicant as her legal guardian .", "On DATE ORG ( PERSON ) in PERSON issued a judgment ordering PERSON ( hereinafter “ the debtor ” ) to pay MONEY ( YUD ) for the maintenance accrued DATE and DATE , with statutory interest , plus ORG CARDINAL for the costs of proceedings . This judgment became final on DATE .", "On DATE ORG ( PERSON ) in ORG ) issued an enforcement order ( rješenje o izvršenju ) providing that the amount due would be paid by the sale of the debtor ’s movable assets . On DATE the debtor ’s objection ( prigovor ) in this regard was rejected .", "On DATE the court bailiff established that the debtor had no movable assets of his own , as he lived at his father - in - law ’s house . The debtor , for his part , submitted in addition that he was paying PERCENT of his salary for the maintenance of CARDINAL other children .", "On DATE ORG informed the second applicant that the debtor was insolvent , as he had no movable assets which could be sold to allow the judgment in question to be enforced .", "On an unspecified date in DATE the debtor paid YUD CARDINAL towards his debt .", "On DATE the second applicant sought enforcement of the remainder of the decision by attachment of the debtor ’s salary , which request was repeated on DATE , DATE , and DATE , CARDINAL DATE and DATE .", "It would appear that on DATE the second applicant complained to ORG about the work of the relevant Court of First Instance . On DATE the judge who was in charge of the enforcement as of DATE , in reply to this complaint , informed the president of ORG that he “ considered the complaint justified ( osnovana ) . ”", "On DATE the said judge informed the second applicant that the enforcement proceedings in her case had been resumed .", "On DATE an expert witness submitted to the ORG court a recalculation of the amount owed in CARDINAL , the amount due being CARDINAL ( ORG ) .", "On DATE ORG in ORG requested the second applicant ’s lawyer to provide the necessary bank details so that a corresponding enforcement order could be issued .", "DATE and DATE the said court attempted to contact the second applicant and also sought assistance from the relevant ORG as well as a ORG in GPE .", "On DATE the first applicant provided the court with the requested bank details .", "On DATE the ORG court issued another enforcement order , providing that CARDINAL of the debtor ’s DATE income was to be transferred to the first applicant as the second applicant ’s legal guardian .", "On DATE the debtor lodged an objection , stating , inter alia , that he was supporting a family of CARDINAL , CARDINAL of whom were minor children , as well as paying PERCENT of his salary for the maintenance of another child . He proposed to pay CARDINAL of his income for the enforcement in question .", "On DATE ORG Instance rejected the debtor ’s objection and upheld its enforcement order of DATE , without considering the debtor ’s arguments in respect of his financial commitments .", "On DATE the same court forwarded the enforcement order of DATE to ORG ( DATE Herceg Novi ) , the debtor ’s employer , a ORG - owned company .", "On an unspecified date thereafter the second applicant would appear to have informed ORG that the said enforcement order had not been complied with , apparently because the debtor was paying off several loans .", "On DATE ORG Instance approached the debtor ’s employer , reminding them that the child maintenance , in accordance with the relevant provisions of LAW and LAW , had priority over all the other pecuniary obligations of the debtor and that the employer was therefore obliged to comply with the enforcement order .", "On DATE ORG ordered the debtor ’s employer to transfer to the second applicant the amount that was otherwise retained by the employer on a DATE basis on account of a loan owed by the debtor to the employer ( see paragraph DATE below ) .", "NORP This decision would appear not to have been enforced to date .", "On an unspecified date the second applicant instituted another set of civil proceedings against PERSON seeking child maintenance . She was represented by the first applicant as her legal guardian .", "On DATE , after CARDINAL remittals , ORG in GPE gave a judgment ordering PERSON to pay PERCENT of his DATE income from DATE , plus ORG CARDINAL for the costs of proceedings . This judgment became enforceable on DATE .", "The applicants maintain that they sought enforcement of this judgment , but have submitted no evidence in that regard , even though they have been requested by the ORG to do so on CARDINAL occasions .", "This judgment would appear not to have been enforced to date .", "On an unspecified date the second applicant instituted another set of civil proceedings against the debtor , seeking an increase of the child maintenance established by the decision of DATE ( see paragraph CARDINAL above ) . On DATE ORG in GPE gave a decision stating that the second applicant ’s claim had been withdrawn . On DATE the second applicant appealed against this decision . These proceedings appear to be still pending .", "On DATE the debtor and his spouse at the time lodged with ORG in ORG a plea for dissolution of their marriage , proposing to the court , inter alia , that the debtor ’s spouse be given custody of their CARDINAL minor children , born in DATE and DATE respectively , and that the debtor pay in respect of child maintenance PERCENT of his DATE income . There is no decision of a domestic court in this regard in the case file .", "On DATE , in criminal proceedings , the debtor was found guilty of not paying child maintenance to the second applicant DATE and DATE , and was sentenced to CARDINAL months’ imprisonment , suspended for DATE . It would appear that the decision is still pending on appeal .", "The debtor ’s payslip of DATE specified that he earned ORG CARDINAL per month , PERCENT of which he was paying towards CARDINAL loans . The payslip indicates that the debtor had taken CARDINAL of those loans from his employer in a total amount of ORG DATE , to be repaid over DATE , and that the other loan had been taken from a bank that very month in a total amount of ORG , to be repaid DATE . It also transpires that over an unspecified DATE period before DATE the debtor had been paying off a third loan , the DATE payment of which amounted to PERCENT of his DATE income .", "Article CARDINAL of the LAW provides that the ORG shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by LAW , after all other effective legal remedies have been exhausted .", "This LAW entered into force on DATE .", "Section CARDINAL provides that a constitutional appeal may be lodged against an individual decision of a state body , an administrative body , a local self - government body or a legal person exercising public authority , for violations of human rights and freedoms guaranteed by the LAW , after all other effective domestic remedies have been exhausted .", "Sections CARDINAL provide additional details as regards the processing of constitutional appeals . In particular , section CARDINAL provides that when ORG finds a violation of a human right or freedom , it shall quash the impugned decision , entirely or partially , and order that the case be re - examined by the same body which rendered the quashed decision .", "This Act entered into force in DATE .", "This Act provides , under certain circumstances , the possibility to have lengthy proceedings expedited by means of a request for review ( kontrolni zahtjev ) , as well as an opportunity for claimants to be awarded compensation by means of an action for fair redress ( tužba za pravično zadovoljenje ) .", "Section CARDINAL , in particular , provides that this Act shall be applied retroactively to all proceedings from DATE , but that the duration of proceedings before that date shall also be taken into account .", "This Act entered into force on DATE , but contained no reference to applications involving procedural delay already lodged with the ORG .", "DATE and DATE the courts in GPE considered CARDINAL requests for review pursuant to the Right to a Trial within QUANTITY . A further CARDINAL requests were withdrawn , and CARDINAL were still being examined . Of the CARDINAL requests that had been considered , in CARDINAL cases the applicants were notified that certain procedural measures would be taken within a specified period . There is no information in the documents provided as to whether these time - limits were complied with or not . CARDINAL requests were rejected as ill - founded .", "DATE and DATE an additional CARDINAL requests for review were considered . A further CARDINAL requests were still being examined and CARDINAL request had been withdrawn . Of the CARDINAL requests that had been considered CARDINAL were rejected on procedural grounds ( odbačeni ) , and CARDINAL were rejected as ill - founded ( odbijeni ) . CARDINAL requests were considered justified ( usvojeni ) : in CARDINAL cases the proceedings were indeed expedited , in CARDINAL they were not , and in CARDINAL cases it is unclear if the proceedings advanced . In CARDINAL requests the applicants were notified that certain procedural measures would be taken within a specified period : in CARDINAL cases the indicated measure would appear to have been taken , in CARDINAL cases “ compliance with notifications was controlled ” without any further details having been provided , in CARDINAL cases the proceedings were not expedited , in CARDINAL case it is unclear what the outcome of the notification was and in CARDINAL case the impugned proceedings ended at about the same time as the applicant lodged the request . As regards the remaining CARDINAL requests for review , decisions and/or notifications were issued without details as to their specific content .", "DATE and DATE CARDINAL actions for fair redress were submitted , of which CARDINAL were dealt with and CARDINAL were still being examined . In CARDINAL case the courts awarded the plaintiff compensation for non - pecuniary damage in respect of the length of civil proceedings . DATE and DATE CARDINAL actions for fair redress were examined , in CARDINAL of which the courts awarded damages .", "Section CARDINAL provides that enforcement proceedings are to be instituted at the request of the creditor , except when this Act specifically provides that the proceedings are to be instituted ex officio .", "Section CARDINAL § CARDINAL provides that the enforcing court is obliged to proceed as a matter of urgency .", "Sections CARDINAL contain , inter alia , provisions relating to enforcement in respect of the debtor ’s movable assets .", "Section CARDINAL provides that enforcement in respect of the debtor ’s salary can reach a maximum of CARDINAL his / her salary .", "Sections CARDINAL - CARDINAL contain , inter alia , provisions relating to enforcement in respect of the debtor ’s income . Section CARDINAL § CARDINAL , in particular , provides that when there are several people entitled to legal maintenance ( zakonsko izdržavanje ) from the same debtor and the total amount sought by them exceeds the proportion of the debtor ’s income in respect of which their claims can be enforced , the enforcement shall be carried out in favour of each creditor in proportion to their claim ( izvršenje se određuje i sprovodi u korist svakog od takvih poverilaca srazmerno visini njihovih potraživanja ) .", "This Act entered into force on DATE . In accordance with section CARDINAL of the Act , however , all enforcement proceedings instituted prior to CARDINAL DATE are to be concluded pursuant to this Act .", "LAW entered into force on DATE , thereby repealing LAW CARDINAL . In accordance with section CARDINAL of this Act , however , all enforcement proceedings instituted prior to DATE are to be concluded pursuant to LAW .", "Section CARDINAL provided , inter alia , that following a debtor ’s request to that effect , a court could increase , reduce , terminate ( ukine ) or alter the maintenance established by a previous court decision if the circumstances on which the said decision was based have changed .", "Section CARDINAL further provided that in a case where a parent who has been ordered by a court decision to pay child maintenance does not comply with that obligation on a regular basis , ORG ( organ starateljstva ) shall , either at the request of the other parent or of its own motion , take measures to ensure that the child is provided with temporary maintenance in accordance with the regulations on social and child protection , until the said parent starts fulfilling his obligation .", "LAW DATE entered into force on DATE , thereby repealing LAW . By virtue of section CARDINAL however , if the first - instance decision was given before this LAW entered into force , the procedure shall be continued under LAW .", "Pursuant to section DATE , the court competent to deal with disputes arising from enforcement proceedings is the court in the region of jurisdiction of the court in charge of the enforcement proceedings .", "This Act entered into force on DATE ." ]

[ "6" ]

[ "6-1" ]

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[ "NORP The applicant was born in DATE and lives in GPE . On DATE he was arrested . On DATE the public prosecutor filed a bill of indictment , charging him LAW . On DATE ORG convicted the applicant as charged . On DATE ORG quashed that decision . Following the abolition of ORG in DATE , ORG took over the case and on DATE convicted the applicant . The applicant appealed . On DATE ORG upheld the judgment ." ]

[ "6" ]

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[ "NORP The applicant , Mr LOC , is a NORP national who was born in DATE . He is currently serving a prison sentence in GPE . The applicant is represented by Ms. PERSON , a lawyer practising in Rīga . The respondent Government are represented by PERSON .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was arrested and taken into custody on suspicion of a murder of his former co - inmate S. , committed in DATE .", "Questioned as a suspect , the applicant pleaded guilty to inflicting bodily injuries on the victim . The applicant contended that during their dispute S. threatened him with an axe . Aiming to hit the axe out of LOC ’s hands , the applicant took a metal bar and accidentally hit PERSON on the head . Afterwards he hit PERSON more times until the latter fell to the ground and let go of the axe .", "Questioned as an accused the applicant , contended that PERSON had attacked him and , in order to defend himself , the applicant hit PERSON on the head until the latter fell to the ground .", "On DATE the applicant ’s girlfriend ORG was questioned as a witness and the testimony was video - recorded . She told that the murder took place in the applicant ’s house where , after having a fight with PERSON , the applicant took a metal bar and hit the victim in head . Then PERSON fell to the ground and the applicant continued to hit him on the head and face . After realizing that PERSON was dead , the applicant buried him in the garden .", "During the pre - trial investigation ORG refused to be cross - examined with the applicant , contending that the latter had threatened her . According to the materials of the case , in DATE she complained to ORG that the applicant had beaten her and injured her with a knife . At a later stage the criminal proceedings , which where instituted against the applicant at the ORG ’s complaint , were discontinued at ORG ’s request .", "Upon the conclusion of the preliminary investigation , the applicant ’s criminal case was transmitted to ORG . Throughout the first- and second - instance court proceedings the applicant was represented by state - appointed defence counsel , a member of ORG .", "The hearing of the applicant ’s criminal case at ORG was held on DATE .", "On DATE , at the beginning of the trial , the court observed that a summons sent to witness ORG was returned to the court with a notice that she did not live at that address .", "The applicant subsequently insisted on the attendance of witness PERSON In addition , for the first time the applicant asked the court to summon witness PERSON on behalf of the defence . The applicant explained that during the pre - trial investigation he had not referred to this witness because he had expected that ORG would refer to him . The applicant contended that witness PERSON went to see him the day after the events at issue took place .", "NORP The court decided to commence adjudication of the criminal case and to leave the request open concerning witness PERSON", "During the court adjudication the applicant confessed that he had inflicted bodily injuries on the victim , however , he contended that he had done so to defend himself against attack by the victim , who was allegedly holding an axe .", "The court further questioned witness PERSON who testified , as he had during the pre - trial investigation , that the applicant had told him that he [ the applicant ] had won a fight with the victim and had buried the body . Further , disregarding the applicant ’s objections , the court read out the statements made by PERSON during the pre - trial investigation , and also viewed a video record of ORG ’s statements . The applicant commented that ORG ’s testimony was false , without providing detailed arguments as to which statements were false .", "At TIME on DATE the court announced a break in the adjudication of the criminal case and adopted a decision that ORG should bring witness ORG to court compulsorily at CARDINAL a.m. on DATE .", "On DATE the ORG department informed the court that they had visited CARDINAL addresses in ORG and that PERSON could not be found at either of them .", "As to witness PERSON , the court noted that it could not establish the exact whereabouts of the witness . The court also mentioned that witness PERSON had not been referred to by the applicant during the pre - trial investigation and , according to the materials in the case file , he was not an eyewitness , therefore the request to summon this witness was dismissed .", "On DATE ORG found the applicant guilty of murder and sentenced him to CARDINAL years’ imprisonment . The court recognised that the applicant ’s statements concerning the circumstances of his fight with PERSON and the alleged necessity of self - defence ( see paragraph CARDINAL ) were inconsistent with his earlier testimony ( see paragraph CARDINAL ) , ORG ’s statements and the expert report which described the multiple serious facial injuries inflicted on S. The court established that by hitting PERSON several times on the head and face the applicant intended to murder him . The court also relied on statements by witness PERSON given during the pre - trial investigation and the trial , and statements by a policeman on duty at the time .", "The applicant appealed against the first - instance court judgment , asking for witnesses PERSON and PERSON to be summoned for examination . He complained that the first - instance court had found him guilty taking into account solely the incriminating statements of witness PERSON , whom he could not challenge or question .", "On DATE ORG summoned witness ORG again , by sending the summons to another address , where she might possibly be located . On DATE the summons was returned to the court with an indication that the addressee could not be reached there .", "On DATE at the beginning of the hearing the court observed that witness ORG had not appeared . The applicant referred to a letter of an unspecified date from ORG , addressed to him , in which ORG had expressed willingness to testify before the court . It appears that the letter did not contain an address for the witness .", "When asked by the court , the applicant did not object to adjudication of the appeal on the merits .", "During the appeal hearing , the applicant testified that he had inflicted bodily injuries on the victim and that “ probably it was not necessary to hit him so many times ” . As to ORG ’s testimony the applicant commented that ORG had probably not seen that the victim had an axe . During the trial the applicant refused to watch the video statement given by witness ORG", "On DATE ORG upheld the judgment , finding that the first - instance court had thoroughly analysed the evidence available and had expressly indicated in its judgment which facts it considered to be established as well as the reasons for its conclusion .", "The applicant submitted a cassation appeal against the decision of the second - instance court . He complained that his procedural rights had not been observed because he could not question witness ORG", "On DATE the ORG of ORG dismissed the applicant ’s appeal on points of law as manifestly ill - founded , at a sitting held in camera . It considered that the applicant had not demonstrated the existence of arguable grounds which would justify holding a hearing in the cassation proceedings . The ORG concluded that ORG ’s witness statements had been sufficiently examined by the first- and second - instance courts . The ORG did not establish that there had been any violations of procedural and substantive law which would have stood in the way of a thorough , complete and objective investigation of the case .", "The relevant provisions of LAW ) , applicable at the material time ( in force until DATE ) , are found in PERSON v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE , and ORG v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr H. Çınar and Mr PERSON , lawyers practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was one of the partners of a company named PERSON ve ORG ve PERSON ( “ the Company ” ) . The ORG , together with a joint venture partner , leased LOC in GPE , GPE , for seafood production for a period from DATE .", "In DATE , the NORP , GPE and the ORG forces carried out military exercises in the area . As a result of wastes discharged by military vessels , the lagoon was polluted , which had detrimental effects on the ORG investment .", "On DATE , the applicant applied to ORG for an assessment of the level of the pollution and the amount of damages that his enterprise had suffered . An expert report was prepared and submitted to the court on DATE . Relying on such report , the applicant applied to ORG for compensation .", "Upon the ORG ’s refusal to compensate him , the applicant brought an action before ORG , which held its first hearing on DATE .", "In the meanwhile , the Company became bankrupt and went into liquidation . Pursuant to the applicable bankruptcy laws , the ORG ruled that the applicant no longer had standing and suspended the proceedings on CARDINAL DATE . The court held that only the liquidator ( iflas idaresi ) who was in charge of the management and liquidation of the assets of the bankrupt ORG , was eligible to resume the proceedings . The court relied on a bankruptcy law principle under which all receivables including the rights , interests and claims relating to ongoing litigation automatically become part of the bankruptcy estate ( iflas masası ) , created in the name and for the benefit of the creditors of a given bankrupt company .", "On DATE , the liquidator applied to ORG in order to resume the proceedings . From that date on , the proceedings continued with the liquidator being the only eligible plaintiff .", "From DATE to DATE , the court held a total of thirtyfour hearings , CARDINAL of which the liquidator failed to attend . Throughout these hearings , the court suspended the proceedings more than once in view of the liquidator ’s failure to attend the hearings , but later resumed them upon the liquidator ’s petition .", "On DATE , the court held a hearing which the liquidator did not attend . The court postponed the hearing to DATE . The liquidator also failed to attend the postponed hearing . On DATE , the court struck the case off , ruling that the plaintiff , i.e. the liquidator , failed to pursue his case . This decision was not notified to the liquidator .", "On DATE , having heard about this decision , the applicant filed an application with ORG to contest its strike - off decision . On DATE , the court dismissed the application holding that the applicant lacked standing and that the liquidator alone could bring such an application . The court also decided to notify the strike - off decision of CARDINAL DATE to the liquidator .", "The applicant and the liquidator jointly appealed .", "On DATE , ORG quashed the civil court ’s decision on a ground unrelated to the questions raised in the appeal . It ruled that under LAW of LAW on the National Defence Duty ” ( PERSON ) the ORG ’s liability for military operations had to be first examined by a national defence commission . The court found that ORG hearing of the case without referring the matter to such a commission first was a procedural defect warranting quashing . Yet , ORG has not made a ruling granting the applicant standing .", "On re - examination , the ORG decided that an application needed to be made to a national defence commission . This court did not grant the applicant standing either . On DATE , the liquidator applied to ORG . The Ministry clarified on DATE however that no such commission existed .", "On DATE , the ORG decided to dismiss the case on the ground that a national defence commission ’s assessment has not been submitted to it and that the prescribed time period had expired .", "On DATE , the applicant and the liquidator jointly appealed this decision . On DATE , ORG upheld it and dismissed an application for rectification on DATE . This latter ruling was served on DATE ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant lodged a petition for divorce with ORG .", "On DATE ORG decided to secure the payment of the applicant ’s maintenance claims on the property of the applicant ’s husband pending the outcome of the divorce proceedings . On DATE it changed its previous decision on the issue of security for the payment of the maintenance claims . The defendant , the applicant ’s husband , appealed . On DATE ORG dismissed the appeal .", "Hearings before ORG were held on DATE and DATE , DATE , DATE and DATE , DATE , CARDINAL DATE and CARDINAL DATE , DATE , DATE , DATE and DATE .", "On DATE ORG gave a judgment ruling on the divorce petition . The applicant was served with it on DATE .", "The relevant domestic provisions and practice concerning the ORG ’s liability for a tort committed by its official have been already cited in previous cases against GPE ( see , for example , PERSON v. GPE , no . CARDINAL , and PERSON GPE , no . CARDINAL/CARDINAL ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant was charged with manslaughter , an offence under LAW . The charge was based , in particular , on the investigator ’s interviews with PERSON , Mr O. and PERSON , eyewitnesses to the incident .", "Mr M. and Mr O. stated that on DATE they and their friend Mr S. had had a fight with CARDINAL strangers . PERSON , drunk , had kicked a red ORG car which was passing by . The driver and CARDINAL passengers had emerged from the car and the driver had hit Mr S. twice in the face . CARDINAL people had then joined in with the strangers and started to hit them . Mr M. , Mr O. and Mr. PERSON had all lost consciousness . On DATE , CARDINAL DATE , PERSON had been found lying in the street by a passer - by and had been taken to hospital , where he had died from the wounds received during the fight .", "During subsequent interviews with the investigator , PERSON and Mr O. changed their testimony slightly , stating that PERSON had fallen immediately after the driver had hit him in the face . They had not seen whether PERSON had been hit by any of the other persons involved in the fight .", "PERSON stated to the investigator that on DATE he had been sitting in a bar . He had seen a red ORG car stop near the bar and CARDINAL people get out of it . CARDINAL of them had entered the bar , while the driver had approached a group of CARDINAL people outside . They had started to argue and then to fight . He had left immediately .", "The trial started on DATE before ORG . The applicant pleaded not guilty . He admitted that on DATE he had had a quarrel with CARDINAL strangers . He had hit CARDINAL of them twice in the chest and retreated to a nearby bar . He had seen the men leave the scene . He insisted that the incident had happened on DATE rather than on DATE . He was sure of the date because he had taken his mother to the tax office on DATE . He requested the court to hear the tax inspector , PERSON . , who could confirm that his mother had paid her taxes on DATE . His request was rejected on the ground that a statement by PERSON . would not be relevant .", "Several witnesses attended the trial . CARDINAL of them stated to the court that he had seen the applicant in the bar during TIME of DATE . He had not , however , seen the fight . Another witness testified that during TIME of DATE he had seen Mr M. with bruises on his face , and that on DATE Mr O. had told him that he , PERSON and PERSON S. had been beaten up by CARDINAL strangers . PERSON wife and brother testified that they had seen Mr S. for the last time on TIME DATE . Another witness told the court that he had found Mr S. badly injured and unconscious in the street not far from the bar TIME at DATE . Another witness stated that during TIME of CARDINAL DATE he had driven CARDINAL men to a bar in his red ORG car . Another red ORG car had been parked near the bar and CARDINAL persons had been standing nearby talking among themselves . He had overheard them saying that they had hit someone who had kicked the wheel of their car . Some time before that , he had seen a man carrying another man .", "NORP The trial court also examined an expert medical report submitted by the prosecutor . The finding of the medical experts was that PERSON had died of a craniocerebral injury . They also recorded numerous bruises on his head and body and found that he had received CARDINAL blows .", "Finally , a police report stating that Mr S. had been discovered lying in the street on DATE was also examined .", "The witnesses Mr O. , Mr M. , and PERSON did not attend the trial . On DATE ORG ordered bailiffs to ensure their appearance in court on DATE .", "It can be seen from the bailiff ’s report of CARDINAL DATE that CARDINAL TIME on DATE he visited the addresses for Mr O. and Mr I. provided during the preliminary investigation . It was confirmed by the new occupants of the flat that Mr O. no longer lived at that address . Mr I. was at work and the bailiffs left the summons to appear with his daughter .", "On DATE the witnesses did not attend . The applicant insisted that the court obtain their attendance . ORG adjourned the hearing until DATE and again ordered the bailiffs to ensure the ORG appearance in court .", "It can be seen from the bailiffs’ reports dated DATE and DATE that Mr O. no longer lived at the address indicated in the case file , as confirmed by the owner of the flat . They visited Mr O. ’s mother , who stated that her son lived in Cheboksary but that she did not know either his home address or the address of his employer . According to PERSON mother , PERSON PERSON lived on the university campus in GPE . When the bailiffs visited the campus , PERSON was not at home . They left the summons to appear with the campus guard . According to PERSON daughter , PERSON was at his country house . She agreed to pass the summons onto him .", "The witnesses did not attend the hearing of DATE . ORG ordered the bailiffs to ensure the ORG appearance in court on DATE .", "The bailiffs’ report dated DATE states that on DATE the bailiffs visited the addresses for PERSON and Mr O. provided during the preliminary investigation . According to his daughter , PERSON was on a business trip outside GPE and she did not know when he was to return . Mr O. no longer lived at the address indicated in the case file .", "On DATE a new decision was issued by ORG , ordering bailiffs to ensure the ORG attendance on DATE .", "On DATE the bailiffs went again to PERSON address and discovered that he had not yet returned from his business trip . They then went to the address for Mr O. indicated in the case file and the new occupants of the flat told them for a fourth time that Mr O. had moved out . The bailiffs then visited Mr O. ’s mother , who told them that she did not know her son ’s address in GPE . They also visited Mr M. ’s mother , who stated that her son did not live with her .", "On DATE the witnesses did not attend . The prosecutor asked for the transcript of the statements given by Mr O. , PERSON , and PERSON to the investigator to be read out . The applicant and his counsel did not object . The transcript was read out . On DATE , ORG ordered the bailiffs to ensure the ORG attendance on DATE .", "On DATE the bailiffs went to the addresses for Mr I. and Mr O. indicated in the case file . Neither of them was at home . The bailiffs noted in their report of the same date that in any event it had long been known that Mr O. did not live at that address and that Mr I. was on an extended business trip .", "At the hearing of CARDINAL DATE , the applicant insisted that the court obtain the attendance of PERSON , PERSON , and PERSON , and objected to the termination of the trial as long as those witnesses had not been questioned . ORG nevertheless decided to terminate the trial on the ground that all attempts to obtain the attendance of the witnesses had been unsuccessful .", "On DATE the ORG of Cheboksary convicted the applicant of manslaughter , finding that his guilt was sufficiently established by the statements made by Mr O. , Mr M. , and PERSON during the pre - trial investigation , the statements of the other witnesses made during the trial , and the medical and police reports . The court rejected the applicant ’s arguments that he had hit PERSON on the chest rather than on the head and that PERSON had left the scene uninjured , finding that they were refuted by the testimony of Mr O. and PERSON , who had witnessed the incident . The applicant was sentenced to DATE and CARDINAL months’ imprisonment .", "In his grounds of appeal the applicant complained , in particular , that ORG had not secured the attendance of Mr O. , Mr M. , and Mr I. at the trial . He submitted that he had been misled into agreeing to the reading out of the transcript of their statements to the investigator . The judge had not warned him that the reading out of the transcript would substitute for the questioning of the witnesses in court . Throughout the trial he had insisted that those witnesses should be questioned . He had also objected to the termination of the trial as long as the witnesses had not been questioned .", "On DATE ORG held that Mr O. , PERSON , and Mr I. had not been questioned in court because , despite the efforts of the bailiffs , they could not be traced . In such circumstances it was permissible for the ORG statements made at the pre - trial stage to be read out at the trial by virtue of LAW .", "On DATE ORG of GPE upheld the judgment on appeal . The appeal court remained silent on the issue of the attendance of witnesses .", "DATE that is , the premeditated infliction of serious injuries resulting in accidental death – carries a punishment of MONEY ( LAW ) .", "The Code of Criminal Procedure of GPE provides that witnesses are to be examined directly by the trial court ( LAW ) . Statements given by the victim or a witness during the pre - trial investigation can be read out with the consent of the parties in CARDINAL cases : ( i ) if there is a substantial discrepancy between those statements and the testimony before the court ; or ( ii ) if the victim or witness has failed to appear in court ( Article CARDINAL ) .", "If a witness fails to comply with a summons to appear without a good reason , the court may order the police or bailiffs to bring him to the courtroom by force ( Article CARDINAL ) .", "Article CARDINAL of the Code of Criminal Procedure provides for a possibility to reopen criminal proceedings on the basis of a finding of a violation of the Convention by ORG ." ]

[ "6" ]

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

[ "6-3-d" ]

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[ "The applicant is a NORP national born in DATE . He is currently detained at FAC in GPE .", "The applicant is represented before the ORG by PERSON , lawyer and director of ORG , a human rights association in GPE .", "A.", "a. The proceedings against the applicant", "In DATE , a preliminary investigation was opened concerning the activities of the applicant as partner , manager and director of the company “ ORG . ” . CARDINAL person had complained to ORG authority ( ORG do Mercado de Valores Mobiliários , hereinafter ORG ) about the activities of this company . It was accused of selling shares and securities of other international companies which , allegedly , did not have a real existence or activity .", "On DATE , officials of the CMVM and of ORG ( ORG ) entered and searched the CARDINAL offices of ORG in GPE and arrested the applicant . Numerous files , including computer data , discs and records , were seized .", "On DATE , the applicant was brought before the investigating judge at ORG ( Tribunal de Instrução Criminal ) and questioned in the presence of his lawyer . After questioning the applicant , the investigating judge told him that he was suspected of having committed the offences of forgery of shares ( Articles CARDINAL and CARDINAL of LAW ) and aggravated fraud ( Articles CARDINAL and CARDINAL of LAW ) . Considering the danger of disruption of the investigations , the danger of absconding and taking into account also that the applicant was a foreigner , the investigating judge ordered the detention on remand of the applicant .", "The applicant unsuccessfully appealed to ORG ) , which upheld the investigating judge ’s order by a decision of DATE .", "Thereafter the applicant filed numerous applications for release , which were rejected by ORG on DATE , CARDINAL DATE and DATE . He also applied for bail on medical grounds , which was refused by the investigating judge on DATE . ORG upheld this decision by a judgment of CARDINAL DATE .", "The applicant also filed a constitutional complaint with ORG ) against ORG decision of DATE . This complaint , concerning the rules of LAW governing the grounds on which detention on remand can be ordered , was declared partly inadmissible and rejected as partly ill - founded , by a judgment of CARDINAL DATE .", "On DATE , the investigating judge issued a decision by which the proceedings were declared exceptionally complex ( excepcional complexidade ) . As a result of this decision , the maximum duration of detention on remand before indictment ( acusação ) by ORG according to LAW was increased from DATE .", "During the period of investigation , the applicant was questioned by the police on CARDINAL , DATE and DATE and on DATE , CARDINAL , CARDINAL and DATE .", "On DATE , ORG filed his indictment against the applicant and CARDINAL other persons . The applicant was accused of fraud , criminal association , forgery of documents and illegal use of databases . According to the prosecution , the applicant and the other CARDINAL accused persons contacted potential customers by telephone , without their having given their consent , offering to send them detailed information on attractive financial investments all over the world . Shares of companies with no real existence were then sold to the customers , payments being made by cheque or bank transfer to a specified account in a NORP bank . These customers were all non - NORP and the shares were first sent to GPE and then from GPE to the customers . It was alleged that the false share certificates were printed , filled in and signed in GPE , under the direction and control of the applicant .", "The indictment was served on the applicant on DATE , with the help of an interpreter . An LANGUAGE translation of the indictment was subsequently given to the applicant , on DATE .", "Several customers of the “ ORG . ” subsequently filed private prosecutions and requests for damages .", "On DATE , the applicant filed with the investigating judge an application for release . He alleged , invoking LAW ( a ) of the LAW , that the service of the indictment was null and void due to the absence of a written translation . The applicant submitted that the maximum lawful duration of his detention on remand had expired , which rendered his further detention unlawful .", "On DATE , the investigating judge rejected the application , noting that neither LAW ( a ) nor the relevant NORP legislation required a written translation of the indictment . The investigating judge added that in any event the DATE period ran until the issuing of the indictment and not until its service .", "A writ of habeas corpus filed by the applicant before ORG ( Supremo Tribunal de Justiça ) on DATE , on the same grounds , was also rejected , by a judgment of CARDINAL DATE .", "The applicant appealed to ORG against the decision of the investigating judge . ORG , by a judgment of DATE , upheld this decision .", "On DATE , the applicant filed a constitutional complaint before ORG against this decision .", "By a judgment of DATE , ORG rejected the complaint as ill - founded , referring to ORG judgment in the GPE v. GPE case ( judgment of DATE , Series A no . CARDINAL ) .", "The trial opened on DATE in ORG ( CARDINALª Vara Criminal ) . The court decided , at the first hearing and as a preliminary issue , that the proceedings could be directed only against the applicant ( separação de culpas ) , the whereabouts of the other CARDINAL accused persons being unknown . Several other hearings were held until DATE .", "By a judgment of DATE , the applicant was convicted of the CARDINAL offences in question and sentenced to DATE imprisonment .", "The applicant appealed to ORG , where the proceedings are currently pending .", "b. The applicant ’s conditions of detention and his medical situation", "According to the applicant , throughout the entire period of his detention he was held in a ORG cell with CARDINAL other people with little or no provision for recreation or welfare . He developed numerous tumours in his throat and suffered from high blood pressure , high cholesterol and thyroid problems .", "In a letter dated DATE from the director of the private office of the Minister of ORG to ORG ( on request of CARDINAL of the applicant ’s representatives ) , the following information concerning the medical situation of the applicant was given :", "The applicant was first examined by the prison doctor on DATE , DATE after his arrest . He was again examined on DATE . As a result , the applicant underwent a certain number of tests as well as an electrocardiogram and abdominal , renal and thyroidal scans .", "An endocrinological consultation in a public hospital was scheduled for DATE but the applicant did not attend it for lack of transportation . However , the applicant was taken to a private doctor for this consultation on DATE .", "His personal doctor also visited the applicant in prison on DATE , DATE and DATE .", "B. Relevant domestic law and practice", "Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW at the time of the facts - provided that the accused was not given access to the prosecution evidence until DATE of the indictment . By a judgment of DATE , published in ORG ) of DATE , ORG , referring to ORG judgment in GPE v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) , ruled that these provisions would be contrary to the LAW if interpreted in such a way as to deny access to the case - file to an accused who wished to challenge the prosecution ’s views on the lawfulness of the detention ." ]

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[ "The applicant , a widow of an appeal - court judge , applied for a readjustment of her pension . On DATE ORG turned her application down . In its decision ORG stated that any benefit paid to judges in service in any manner whatsoever , does not constitute an increase in their basic salary and can not be taken into consideration for the calculation of the retirement pension or an adjustment of this pension . The applicant appealed to ORG .", "On DATE ORG upheld her appeal considering that she was entitled to an additional pension of CARDINAL drachmas ( ORG ) per month for the period DATE and DATE ( judgment No . DATE ) . The court ordered the ORG to pay the applicant immediately the money owed for the period DATE and DATE . Moreover , the ORG was to pay the applicant on DATE the money owed for the period DATE and DATE , on DATE the money owed for the period DATE and DATE and on DATE the money owed for the period between DATE and DATE .", "The decision was served on the Minister of Finance on DATE . Because the ORG did not appeal within DATE , the decision of ORG became final on DATE as provided by domestic law .", "In the meantime , on DATE Law No . CARDINAL was enacted . Section CARDINAL of that statute interpreted Law No . CARDINAL and provided that the scales established by various ministerial decisions could not be applied to the calculation of the judge ’s retirement pensions . Furthermore , any claim based on that statute was statute - barred , any pending judicial proceedings set aside and any sum paid out , other than pursuant to a final judgment , had to be refunded .", "In a judgment of CARDINAL DATE ORG , sitting as a full court , held that LAW of the above - mentioned statute was unconstitutional and contrary to LAW .", "NORP However , the authorities refused to pay the applicant the additional pension as specified in the above decision .", "By a decision No . DATE of DATE the Minister of Finance ordered that all judgments of ORG whereby retirement pensions had been adjusted should be enforced . The decision provides for the payment of the additional pensions for the period DATE to CARDINAL DATE by way of CARDINAL DATE instalments without interest in the form of ORG bonds . The sums are to be paid to the interested parties upon submission of a declaration certifying that they have not already received any other payment in this respect and that they will not raise any other similar claim for the above - mentioned period ." ]

[ "6" ]

[ "6-1" ]

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[ "14" ]

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[ "NORP The applicant was born in DATE and lives in GPE . At the time of the events , he was the provincial leader of HADEP ( PERSON ) in GPE .", "On DATE the military judge sitting on the bench of ORG ordered the applicant 's detention in absentia . According to the detention order , the applicant was suspected of aiding and abetting an illegal organisation , the ORG ( ORG Party ) .", "On DATE police officers conducted a search in the GPE office of ORG and the applicant was taken into police custody . In the search and arrest protocol , which was signed by the applicant , it was explained that the applicant was taken into custody pursuant to the detention order issued DATE before by ORG . Following his arrest , the applicant was brought before the military judge of ORG and , on his order , was placed in detention on remand .", "On DATE the applicant filed an appeal against the detention order and requested his release .", "On DATE , having regard to the nature of the offence and the state of the evidence , ORG -composed of CARDINAL judges including a military judge- dismissed the applicant 's appeal .", "On DATE the public prosecutor at ORG filed a bill of indictment against the applicant , charging him with aiding and abetting the ORG under LAW .", "On DATE the applicant was released pending trial .", "On DATE ORG convicted the applicant of aiding and abetting the ORG and sentenced him to DATE and DATE imprisonment .", "While the proceedings were pending before ORG , on DATE new legislation ( Law No . DATE ) , which governed the conditional release , suspension of proceedings or execution of sentences in respect of offences committed before DATE , came into force . Accordingly , on DATE ORG quashed the judgment of the first - instance court .", "NORP On DATE ORG suspended the proceedings against the applicant . According to LAW . DATE , these proceedings would be resumed only if the applicant were to commit an offence of the same or more serious kind within DATE of the court 's decision to suspend the proceedings .", "It appears from the documents in the file that no charges have been brought against the applicant during the period of suspension ." ]

[ "5" ]

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

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[ "Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON ORG are all NORP citizens , born in DATE , DATE respectively . They live in GPE , GPE , GPE and GPE respectively . At the relevant time they were each permanently employed in different capacities by various local authorities . Their precise status and functions are described in Section C below .", "The background to their complaints to the Convention institutions is constituted by the enactment and implementation of legislative measures designed to limit the involvement of certain categories of local government officials , such as themselves , in political activities . The history of the enactment of the relevant measures as well as their purport and scope are described in Section B below . The impact of the measures on the applicants , all persons considered holders of politically restricted posts within the meaning of the applicable legislation , is described in Section C below .", "Against the background of the increasing politicisation of local government and attendant problems in respect of the relationship between elected members and local government officers , the Secretaries of State for the Environment , for GPE and for GPE , appointed on CARDINAL DATE a committee ( “ the ORG ” ) to inquire , inter alia , into the respective roles of elected members and officers of local government authorities and to make any necessary recommendations for strengthening the democratic process .", "On DATE , after receiving evidence from CARDINAL local government authorities and over CARDINAL other organisations and individuals , ORG submitted its report . The ORG firmly endorsed the continuation of the tradition of politically impartial local government officers having regard in particular to the roles of senior officers as managers , advisers and arbitrators in the day - to - day functioning of local government . In his foreword to the final report the Chairman of the ORG wrote :", "“ CARDINAL . Although most of the problems we have perceived have been ones of uncertain relations , there have been some cases , albeit a few , where power has been abused . ”", "In the Chairman ’s view , the recent sharpening of the political intensity of local politics was reflected in the relations between elected council members and local government officers and that the trend towards greater politicisation might be a source of future problems unless recommendations were made in order to provide a framework able to cope with it . With regard to the importance of the impartiality of local government officers , ORG concluded that :", "“ CARDINAL . The overwhelming view in the evidence we have received has been that officers ( subject to very limited and closely defined exceptions ) should continue to serve the council as a whole . … There has been equally wide agreement that the public service tradition of a permanent corps of politically impartial officers should be retained . …", "Public service in GPE is founded on a tradition of a permanent corps of politically neutral officers serving with equal commitment whatever party may be in political control . …", "Local government in GPE has traditionally been based on the same public service tradition as central government , but this has been a matter of convention and practice . …", "The issue of principle is therefore straightforward . There must continue to be a system of permanent and politically neutral officers appointed on the basis of merit . The issue which we need to consider is whether new machinery or rules are required to ensure this , and if so on what basis . ”", "To ensure that senior officers continued to discharge their functions in a manner which was impartial from both a subjective and an objective point of view , ORG in paragraph CARDINAL of its report recommended that :", "“ ( a ) the legislation should be amended so that persons who are councillors or who are standing for election as councillors , or who have been councillors within DATE , may not be employed by another authority at the rank of principal officer or above ;", "( b ) LAW should take steps to include in the terms and conditions of officers at the rank of principal officer and above a prohibition on political activity , including :", "( i ) standing for , and holding , public elected office ;", "( ii ) holding office in a political party ;", "( iii ) speaking or writing in public in a personal capacity in a way that might be regarded as engaging in party political debate ; and", "( iv ) canvassing at elections ;", "( c ) if the changes recommended at ( b ) are not made to ORG terms and conditions , legislation should be introduced to similar effect . ”", "Following the publication of the recommendations of ORG , on CARDINAL DATE ORG passed ORG Housing Act DATE ( “ the Act ” ) , which empowered the Secretary of ORG for the Environment to make regulations to restrict the political activities of certain categories of local government officers . The LAW entered into force on CARDINAL DATE .", "ORG ( Political Restrictions ) Regulations DATE ( “ the Regulations ” ) were made under section CARDINAL(CARDINAL ) of the LAW on DATE . They were laid before ORG DATE and came into force on DATE . The ORG applied to all persons holding a politically restricted post as defined in section CARDINAL(CARDINAL ) of the LAW . This term covers CARDINAL broad categories of local government officials : the most senior post - holders in local government ( category one ) ; officials remunerated in excess of a prescribed level and whose posts are listed for the purposes of the application of the Regulations ( category CARDINAL ) ; and officials paid less than the prescribed level but who hold a listed post ( category CARDINAL ) . Each local authority was obliged to draw up a list of posts falling within the second and third categories ( section CARDINAL(CARDINAL ) ) . A local government officer in the second and third categories could apply to an independent adjudicator to have his or her post removed from the list of posts to which the LAW applied ( section CARDINAL ) .", "All local government officials employed in these categories at the time of the entry into force of the Regulations were deemed , according to regulation MONEY ) , to be subject to the measures .", "A more detailed analysis of the contents of the LAW and the ORG is set out at paragraphs CARDINAL–CARDINAL below .", "The first applicant , PERSON , was a solicitor employed by ORG of GPE . Although his salary fell below the level prescribed in section CARDINAL ) of the LAW ( see paragraphs CARDINAL above and especially CARDINAL below ) , making him a category CARDINAL officer , the ORG pursuant to section CARDINAL(CARDINAL)(c ) of the LAW included his post in the list of politically restricted posts because , in its opinion , his post involved giving advice on a regular basis to committees of the ORG , namely ORG , ORG and ORG ( see paragraph CARDINAL below ) .", "Mr PERSON was adopted as Labour candidate for election to GPE of GPE in DATE , but was obliged to withdraw his candidature as a result of the Regulations . On DATE he applied for removal of his job description from the list of politically restricted posts ( see paragraphs CARDINAL above and especially CARDINAL below ) . The ORG confirmed that PERSON had not attended committees during DATE , but stated that he would be involved in giving advice to committees in future , and would attend on a more regular basis . ORG did not provide therefore a certificate stating that he did not give advice regularly . The adjudicator replied to ORG that PERSON application for exemption could not therefore be granted .", "Prior to his retirement , the second applicant , Mr PERSON , was ORG with ORG ( a category CARDINAL officer ) . He was responsible for leading , directing and developing the ORG ’s area valuation staff . His post required him to give regular advice to the ORG ’s committees , including strategy advice on key estate management issues , and to speak to the media . Accordingly his post was included in the list of politically restricted posts kept by the ORG in accordance with section CARDINAL ) of the LAW ( see paragraph CARDINAL above and especially paragraph CARDINAL below ) .", "On DATE Mr Perrin applied for exemption from political restrictions on the ground that although he advised the ORG at meetings and spoke to the media , the advice was “ factual valuation information regarding the acquisition , disposal and management of property ” . His application for exemption was refused on DATE . The adjudicator wrote :", "“ I am satisfied that the duties of your post do fall within section CARDINAL(CARDINAL ) of the LAW in that you do regularly attend committee meetings of the authority to give advice . Your authority do state that this advice does not extend to ‘ policy advice’ , but the LAW itself makes no distinction between types of advice . I am not prepared , therefore , to grant an exemption under section CARDINAL(CARDINAL ) of the LAW . ”", "As a result of the ORG , Mr PERSON had to give up his position as Vice - Chair and Property Officer of ORG , and had to refrain from supporting and assisting Labour candidates in ORG elections , including his wife , who was a candidate in DATE and DATE . He also reduced his involvement in trade union activities .", "The third applicant , Mr Bentley , is a planning manager with ORG . He resigned from his position as Chairman of ORG and ORG because of the ORG , and was also restricted in canvassing for his wife who stood as the only ORG for ORG , and in giving radio interviews in his capacity as Chairman of ORG , a body concerned with ORG policies .", "The monitoring officer of the ORG classified Mr PERSON ’s post as CARDINAL that was politically sensitive ( a category one post ) and appropriately subject to political restrictions under section CARDINAL(CARDINAL ) of the LAW ( see paragraph CARDINAL below ) . The reasons for the classification included that Mr Bentley was head of the ORG ’s corporate policy unit , that he was responsible directly to the head of the ORG ’s paid service , that his post was responsible for policy analysis and research , that he represented the ORG on a transport steering group involving other authorities and organisations , and that , in DATE prior to CARDINAL DATE , he attended CARDINAL meetings of ORG sub- ) ORG and advised on CARDINAL separate issues of public transport . The monitoring officer considered that Mr PERSON ’s post also fell within section CARDINAL ) and ( b ) of the LAW , and was therefore politically restricted in any event ( see paragraph CARDINAL below ) .", "Mr Bentley applied for exemption from political restrictions . On DATE the adjudicator underlined that he regarded his duties as limited to considering applications concerning restrictions under section CARDINAL ) of the LAW . He stated that although the ORG may have identified the post as being politically restricted , it was not", "“ politically restricted because of that fact , but because it is explicitly covered by section CARDINAL(CARDINAL)(c ) of the LAW . I therefore do not consider it necessary or desirable to address the question of whether this post meets the criteria for inclusion in the list of posts under section CARDINAL(CARDINAL ) or for exemption from that list , unless or until it is established that the post is not covered by section CARDINAL(CARDINAL)(c ) . ”", "The fourth applicant , PERSON , is employed by ORG as the head of its ORG ( a category one post ) . The provision of services to the ORG ’s committees necessarily involves ORG in frequent contact PERSON with and giving advice to the elected members of ORG . PERSON was the officer responsible for those activities .", "As a consequence of the ORG , Mr ORG can no longer act as NORP Chairman of his party in GPE and is prevented from speaking at public meetings on issues such as housing and the health service . PERSON did not apply for exemption from the scope of the Regulations .", "The applicants and ORG ( the predecessor of ORG , the trade union of which the applicants are members and which represents public - sector workers ) applied for and were granted leave to apply for judicial review of the LAW . The application was dismissed on DATE . The judge , Mr Justice PERSON , considered that he was bound by the recent decision of ORG in the case of NORP v. Secretary of ORG for ORG , ex parte PERSON and Others regarding the status of LAW in domestic law . In connection with the test of “ ORG ” unreasonableness , the judge referred to an affidavit submitted by PERSON Simcock , a senior civil servant at ORG , in which ORG explained how ORG ( see paragraph CARDINAL above ) had been set up in DATE to inquire into local authority practices and procedures with particular reference to the respective roles of elected members and officers . Mr PERSON also described the consultation process between the publication of ORG and the making of the Regulations , in which ORG was involved , and how the Regulations were in some respects less restrictive than ORG proposals . Referring to senior officers , ORG had said :", "“ ... It is part of their job to advise councillors , and to adjudicate on matters of propriety , and in so doing they must command the respect and trust of all political parties . There might well be some senior officers who are politically active but who are nevertheless totally able to detach themselves from such activity in carrying out their duties as neutral officers . Nevertheless we believe there will always be a very significant risk that they are viewed with suspicion by councillors of other parties , and that as a consequence the performance of their duties towards the council as a whole will be impaired . ”", "The judge continued :", "“ ... I preface my summary by pointing out that some of [ the applicants’ complaints ] reflect the applicants’ root and branch opposition to the whole concept of restricting the political activities of local government employees . It is said that :", "There was no pressing social need for the Regulations – local government employees have in the past provided impartial advice and there is public confidence in their ability to do so .", "The definition of [ persons holding politically restricted posts ] is unduly wide – a much more restricted category would have served the government ’s purpose .", "The restrictions are expressed in broad , subjective and uncertain terms – a vice particularly objectionable where , as here , they seek to restrict fundamental human rights . Thus , in the Schedule references to apparent intention ( paragraphs CARDINAL and DATE ) and to publication in circumstances likely to create an impression ( paragraphs CARDINAL and CARDINAL ) are objectionable , as is paragraph CARDINAL of the Regulations themselves .", "The consequence of the vice mentioned in the previous paragraph is that employees are likely to be treated inconsistently by different employers , by reason of there being room for undue latitude in interpreting the restrictions .", "The Regulations go too far in prohibiting conduct undertaken with apparent intention , etc . , or likely to create the impression of support , etc . They should , at most , have proscribed actual political activities .", "The width of the language used means that many non - party political activities , including trade unions and charitable activities , are prohibited .", "The terms are imposed on existing employees , who entered into their contracts of employment on a different basis .", "The restrictions may have an adverse effect on recruitment and lead to resignations by skilled staff .", "Some of these points will have to be considered individually when I come to deal with further arguments advanced by the applicants under quite different heads , but in the context of ORG unreasonableness I propose only to say that they do not in my judgment come near to establishing a case of perversity . I have already briefly referred to the genesis of the LAW and the LAW in ORG , and to the consultative processes that followed it . Paragraph CARDINAL of the ORG contained the recommendation that :", "‘ ... terms and conditions of [ persons holding politically restricted posts ] [ should include ] a prohibition on political activity , including ... ( iii ) speaking or writing in public in a personal capacity in a way that might be regarded as engaging in party political debate;’", "ORG in DATE ( in which , as already mentioned , the view was expressed that the categories of [ persons holding politically restricted posts ] should be more restricted than the ORG proposed ) spelt out the essential aim that :", "‘ it was important that the post - holder should be seen to be politically impartial but that otherwise , local government employees should not be subject to restrictions on their political activity.’", "Of the specific arguments mentioned in ( a ) to ( h ) above , those in ( a ) , ( b ) , ( e ) , ( g ) and ( h ) are , it seems to me , essentially arguments against the whole concept of restricting such activities , and in the circumstances can not found an attack on ORG grounds . The arguments summarised in ( c ) and ( d ) are to the effect that the Regulations are uncertain and incapable of consistent and fair application . As a ORG argument , this contention could not avail the applicants DATE at least unless the Regulations were void for uncertainty ( this would be a distinct ground for challenge ) which plainly they are not . Finally , the argument mentioned in ( f ) is in my view misconceived : the Regulations do not prohibit the kind of activities there mentioned . I shall have more to say on this subject when I deal with the applicants’ specific arguments on vires and legitimate expectation , to the first of which I now turn . ”", "In conclusion , the judge found that the ORG did not go beyond the policy and purpose of the LAW , and rejected an argument that the applicants had a “ legitimate expectation ” that the ORG would not interfere with trade union activities on the basis of an assurance from the then minister for local government matters .", "An appeal to ORG was dismissed on DATE . Lord Justice PERSON found that the provisions of LAW did not assist ORG and the applicants , confirmed that it was not open to the courts below ORG to depart from the traditional ORG grounds in reviewing the decision of a minister who has exercised a discretion vested in him by ORG , and found that the ORG were not “ ORG unreasonable ” or ultra vires . He also agreed with the first - instance judge as to legitimate expectation . The other judges , ORG Justices PERSON and PERSON , agreed . Leave to appeal to ORG was refused .", "ORG refused leave to appeal to it on DATE .", "Section CARDINAL(CARDINAL ) of the LAW provides :", "“ The terms of appointment or conditions of employment of every person holding a politically restricted post under a local authority ( including persons appointed to such posts before the coming into force of this section ) shall be deemed to incorporate such requirements for restricting his political activities as may be prescribed for the purposes of this subsection by regulations made by the Secretary of ORG . ”", "The term “ persons holding a politically restricted post ” is defined by section CARDINAL ) of the LAW . It consists of CARDINAL broad categories of local government officer ( excluding headmasters and teachers , who are exempt from the operation of the Regulations by reason of section CARDINAL(CARDINAL ) of the Act ) .", "The first category consists of officers who hold certain posts specified in section CARDINAL ) to ( f ) of the LAW , namely the head of the authority ’s paid service ( section CARDINAL(CARDINAL)(a ) ) ; the chief officers ( section CARDINAL(CARDINAL)(b ) and ( c ) ) ; the deputy chief officers ( section CARDINAL(CARDINAL)(d ) ) ; the monitoring officer ( section CARDINAL(CARDINAL)(e ) ) ; and assistants for political groups ( section CARDINAL(CARDINAL)(f ) ) .", "There are CARDINAL officers in this category according to the Government ’s memorial .", "The chief officers are the heads of the various departments within the local authority ’s administration . They consist of “ statutory ” and “ non - statutory ” chief officers . These terms are defined in section PERSON ) and ( CARDINAL ) of the LAW respectively . The “ statutory ” chief officers are the chief education officer , the chief officer of the fire brigade , the director of social services or director of social work , and the chief financial officer . A “ non - statutory ” chief officer is defined as , inter alia , a person for whom the head of the authority ’s paid service is responsible ( section CARDINAL(CARDINAL)(a ) ) , or a person who , largely or exclusively , reports directly to or is directly accountable to the head of the authority ’s paid service ( section CARDINAL(CARDINAL)(b ) ) . A “ deputy ” chief officer is a person who , as regards all or most of the duties of his or her post , is required to report directly or is directly accountable to CARDINAL of the statutory or non - statutory chief officers ( section CARDINAL(CARDINAL ) ) . By section LOC ) , purely secretarial or clerical staff are not non - statutory chief officers or deputy chief officers .", "The second category consists of those local government officers whose DATE rate of remuneration exceeds the level specified in section CARDINAL ) and ( b ) of the LAW ( “ the prescribed level ” , which is currently MONEY per annum or pro rata for part - time posts ) and whose posts have not been exempted from the operation of the Regulations .", "The Government estimate that there are CARDINAL officers whose salary exceeded the prescribed level . However , in their view , the number of officers who were actually subject to the ORG is considerably CARDINAL since a significant number had either been granted an exemption or would have been entitled to one had they applied .", "The third category ( defined by section CARDINAL(CARDINAL ) ( c ) of the LAW ) consists of those local government officers whose DATE rate of remuneration is less than the prescribed level but whose duties consist in or involve CARDINAL or both of the duties identified in section CARDINAL(CARDINAL ) , namely :", "“ ( a ) NORP giving advice on a regular basis to the authority themselves , to any committee or sub - committee of the authority or to any joint committee on which the authority are represented ;", "( b ) speaking on behalf of the authority on a regular basis to journalists or broadcasters . ”", "According to the Government ’s memorial , there are CARDINAL officers in this category .", "Each authority is obliged to prepare a list of persons falling within the second and third categories ( section CARDINAL(CARDINAL ) ) . Any officer whose post is included on this list is entitled to be removed from the list on the grounds that his or her duties do not include duties of the kind set out in section CARDINAL ) .", "Section CARDINAL of the LAW provides for the appointment of a person to consider applications for exemption from political restriction . If the person appointed ( who is called the adjudicator ) finds that the duties of a listed post ( that is , those posts falling within the second and third categories ) do not fall within section CARDINAL(CARDINAL ) , he or she is required to direct that the post is not to be regarded as a politically restricted post . The authority must then remove the post from the list maintained under section CARDINAL(CARDINAL ) .", "According to the ORG , as at DATE , CARDINAL applications had been made for exemption of which CARDINAL have been granted .", "The Schedule ( Part I ) to the Regulations prohibits the participation of persons holding politically restricted posts ( including persons appointed to such posts before the coming into force of the Regulations ) in elections for ORG , ORG or any local authority either as a candidate ( paragraph CARDINAL ) , an election agent ( paragraph CARDINAL ) or a canvasser ( paragraph CARDINAL ) . It does not prohibit membership of a political party , but does prohibit the holding of an office within a political party if that would involve participating in the general management of that party or CARDINAL of its branches ( paragraph CARDINAL(a ) ) or representing the party in dealing with others ( paragraph CARDINAL(b ) ) .", "Speaking to the public or to a section of the public or publishing any written or artistic work with “ the apparent intention of affecting public support for a political party ” is also prohibited by DATE of Part II of the Schedule . Under paragraph CARDINAL , nothing in paragraphs CARDINAL and CARDINAL shall be construed as precluding the appointee to a politically restricted post from engaging in the activities mentioned in those CARDINAL paragraphs to such an extent as is necessary for the proper performance of his duties .", "In accordance with regulation CARDINAL when determining whether a person has breached the terms and conditions set out in paragraphs CARDINAL and CARDINAL regard shall be had to :", "“ ( a ) NORP whether the appointee referred to a political party or to persons identified with a political party , or whether anything said by him or the relevant work promotes or opposes a point of view identifiable as the view of one political party and not of another ; and", "( b ) where the appointee spoke or the work was published as part of a campaign , the effect which the campaign appears to be designed to achieve . ”", "The Government informed the ORG in their memorial that a review was then being conducted of the detail of the legislation governing political restrictions on local government officers . The aim of the review was to ensure that the detail of the restrictions imposed was essential for the maintenance of political impartiality of senior local government officials . At the hearing the Government informed the ORG that the review had ORG shown that the maintenance in force of the restrictions set out in the LAW continued to be justified ." ]

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[ "10", "11" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant was arrested and taken into police custody by police officers from the Anti - Terror Branch of ORG on suspicion of his membership of an illegal organisation , namely the ORG ( ORG ) .", "On DATE the public prosecutor granted the request of the Anti - Terror Branch to place the applicant in police custody for DATE at the Anti - Terror Branch of ORG .", "On DATE ORG extended the custody period for a further DATE .", "On DATE the applicant was taken to ORG , where he was issued with a medical report . In the report ‘ surface erythema and scrapes on the proximal part of both arms’ were noted . On DATE the applicant was allegedly forced to sign a statement explaining that the bruises on his arms had been caused by a dust allergy .", "On DATE the applicant was brought before the public prosecutor of ORG and then before a judge at ORG , where he stated that he had been subjected to physical and emotional violence . The court ordered the applicant ’s detention on remand .", "On DATE , a doctor at ORG examined the applicant and reported bruises of QUANTITY on both upper arms and an ecchymose under his left arm joint , as well as a complaint of backache . In the report , it was also noted that the signs of physical violence were sufficient to prevent the applicant from working for DATE .", "On DATE the public prosecutor of ORG filed a bill of indictment , charging the applicant with the criminal offence of being a member of an illegal organisation described in LAW and section CARDINAL of the Prevention of Terrorism Act ( Law no . ORG ) .", "At the first hearing of DATE the applicant repeated his allegation of ill - treatment before ORG . He also requested an allergy test and an examination of his signature . The court rejected his requests .", "On DATE the applicant was able to consult a dermatologist , who examined the applicant and found no indication of any allergies .", "On DATE the public prosecutor filed an indictment with ORG , charging the QUANTITY police officers whose signatures were on the applicant ’s statement made in custody with a criminal offence proscribed by Article CARDINAL of LAW . In his indictment the public prosecutor cited the CARDINAL medical reports drawn up in respect of the applicant , which mentioned the bruises on his arms .", "On DATE ORG ordered that a letter be sent to the applicant inviting him to take part in the proceedings .", "At the hearings on DATE and DATE , the court issued bench warrants for the applicant in order to consider his testimony as a witness . The responses to these warrants from the local authorities revealed that the applicant was detained in ORG .", "At the hearings on DATE and DATE , the court ordered that written notifications be sent to ORG in order to secure the presence of the applicant before the court .", "The prison administration informed the court that the applicant had refused to attend the hearings and provided letters to this effect . These documents did not bear the applicant ’s signature .", "On DATE ORG heard the defendant police officers . It took note of the documents sent by the prison administration , and subsequently dispensed with the applicant ’s testimony on the grounds that the applicant had chosen not to attend the hearing , and that taking his testimony would not affect the verdict . The court further stated that the applicant had not brought a specific complaint regarding his allegations ; the criminal proceedings were instituted by the public prosecutor on his own initiative based upon the information he had obtained from ORG . It took note of the applicant ’s previous statements and acquitted the police officers of the offence on account of a lack of evidence .", "On DATE the applicant filed another complaint with ORG against the same police officers .", "On DATE ORG issued a decision of non - prosecution , referring to the trial that had already been held before ORG .", "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 , DATE ) ." ]

[ "13", "3" ]

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[ "The applicants , Mr PERSON ( “ the first applicant ” ) and Mr JeanFrançois Fillon ( “ the second applicant ” ) , are NORP nationals who were born in DATE and DATE respectively . The first applicant lives in ORG and the second applicant in ORG , in the département of ORG . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , PERSON , who was succeeded as Agent by PERSON , ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicants both run farms rearing pigs for meat production . This type of farm is subject to the legislation on establishments classified for the purposes of environmental protection ( Law no . CARDINAL of DATE ) .", "The applicants’ farms were inspected by the veterinary services department of PERSON , as a result of which criminal proceedings were instituted against the applicants .", "The first applicant was convicted of running the farm without giving prior notice , while the second applicant was convicted of running his farm without obtaining prior authorisation from the prefect .", "The first applicant , Mr GPE , co - manages with his wife a limited liability farm company by the name of ORG .", "On DATE the applicant acquired a farm situated QUANTITY from his place of residence ( ORG ) , in the neighbouring municipality of ORG .", "In a letter of CARDINAL DATE the applicant ’s wife informed the veterinary services department that she and the applicant had purchased the farm and planned to construct a building for raising pigs on deep straw bedding , designed to accommodate CARDINAL meatproducing pigs . The letter also informed the department that notice to that effect would be given by DATE .", "On DATE the inspector of establishments classified for the purposes of environmental protection carried out an inspection of the piggery . The applicant arrived in the late morning while the inspection was in progress .", "In a report drawn up DATE , the inspector noted that there were around CARDINAL fattening pigs on the farm . As an establishment housing QUANTITY pigs , the farm fell into the category of classified establishments in respect of which notice had to be given to the prefecture ( heading DATE ) . The inspector ’s report stated that the applicant , who had arrived on the farm during the inspection , had been unable to provide a document from the prefecture of ORG acknowledging receipt of the required notice .", "On DATE the applicant was interviewed by officers at ORG gendarmerie station . He referred to the letter of CARDINAL DATE stating his intention to give notice by DATE .", "On DATE the public prosecutor at the ORG tribunal de grande instance summoned the applicant to appear before ORG on a charge of operating a classified establishment without giving prior notice . The establishment in question housed CARDINAL fattening pigs , so that it came under heading DATE of the classification and was subject to notice . At the outset of the trial the applicant objected that the proceedings were void because a senior police officer ( officier de police judiciaire ) had entered his home unlawfully for the purposes of LAW , the inspector ’s visit having taken place in the farmer ’s absence and without his express consent . He further objected that the inspector ’s report was invalid , as it had not mentioned his status as a senior police officer or provided accurate details as to the number and weight of the pigs .", "In a judgment of CARDINAL DATE ORG dismissed the objection , finding as follows :", "“ Unless it were to be argued that the defendant had made his home in the piggery , which was hardly the case , the building housing the pigs can not be considered to satisfy the criteria for a ‘ home’ .", "Accordingly , it must be held that the inspector did not conduct a search or enter the applicant ’s home unlawfully . Nor is it necessary to respond to the unfounded assertion that inspectors of establishments classified for the purposes of environmental protection have the status of senior police officers , which they patently do not .", "The inspector merely made use of his powers to inspect at any time the establishments for which he is responsible under LAW no . CARDINAL , without his being bound by the rules governing searches . ”", "On the merits , the court found the applicant guilty of operating a classified establishment without giving prior notice , and sentenced him to payment of a fine of MONEY ( ORG ) , equivalent to CARDINAL ( ORG ) .", "The applicant appealed .", "In a judgment of CARDINAL DATE ORG ruled as follows on the objection that the proceedings were void as there had been a violation of LAW .", "“ The concepts of ‘ private life’ and ‘ home’ remain confined to the personal sphere , although they may in certain circumstances encompass professional and commercial activities .", "The visit by the inspector of classified establishments was conducted in accordance with the provisions of LAW of DATE ... in a piggery used solely for agricultural purposes which was a potential source of harm to the environment , and in no sense in a ‘ home’ within the meaning of LAW . The first objection should therefore be dismissed .", "Furthermore , reports by inspectors of classified establishments are generally drawn up during the inspection , which constitutes an administrative measure . The provisions of LAW do not therefore apply . In any event , the inspectors’ powers derive from LAW of DATE , which confers specific powers derogating from ordinary police procedure . LAW states that inspectors ‘ may inspect the establishments under their supervision at any time’ . The intention of the law in this respect is to allow the prefecture to ensure that classified establishments which , by definition , are a potential source of harm or nuisance to the community , are being operated in accordance with the relevant legislation or rules . Applying the provisions of LAW to the supervision of these establishments would deprive the measures laid down by PERSON no . CARDINAL of DATE of any effect . ”", "ORG upheld the applicant ’s conviction at first instance but , noting that the situation had been regularised in the meantime , reduced the fine to ORG CARDINAL,CARDINAL ( EUR CARDINAL ) .", "In a judgment of DATE , served on the applicant on DATE , ORG dismissed an appeal by the applicant , finding that the appellate court had given reasons for its decision , notably in the following terms :", "“ ... inspections of establishments under their supervision , carried out under LAW paragraph CARDINAL of the PERSON of DATE by the inspectors of classified establishments , do not constitute general searches or house searches within the meaning of Articles CARDINAL and CARDINAL of LAW . ”", "The second applicant , Mr Fillon , runs a farm . In DATE he built a unit on the farm to house pigs for breeding and fattening .", "The ground plan supplied by the applicant shows that the farm comprises a collection of several farm buildings and also his house , which is set back from the buildings housing the pigs .", "On DATE the veterinary services inspector conducted an inspection of the farm , in the presence of the applicant , and produced a report noting the presence of CARDINAL boar , CARDINAL sows and around QUANTITY meatproducing pigs . The report stated that the farm had over QUANTITY pigs , so that it came under heading CARDINAL of the classification of establishments subject to authorisation by the prefecture . In his report , the inspector noted that the applicant had been unable to produce an authorisation decision from the prefecture of PERSON , as he had not submitted the relevant application .", "On DATE the applicant was interviewed by officers at ORG gendarmerie station . He told them that he had increased the capacity of the farm out of financial necessity .", "The public prosecutor at the ORG tribunal de grande instance summoned the applicant to appear before ORG on a charge of operating a classified establishment , consisting of a pig farm with CARDINAL animals , without prior authorisation from the prefect ( heading DATE ) .", "In a judgment of DATE ORG set aside the report and the subsequent proceedings , finding :", "“ ... under LAW of the PERSON of DATE , these inspectors may inspect the establishments under their supervision at any time .", "However , although these provisions allow them to derogate from TIME laid down for house searches by LAW , they do not exempt them from the requirement set forth in LAW to obtain , in the case of a preliminary investigation , the prior express consent of the person concerned .", "It should be noted in this connection that a farm constitutes a ‘ home’ .", "It should further be noted that the inspection of Mr ORG ’s farm was carried out in order to ascertain the situation vis - à - vis the receipt for notice in respect of CARDINAL sows .", "Hence , the provisions of LAW should have been complied with , and the infringement of those provisions renders the report and , consequently , the subsequent proceedings and prosecution invalid . ”", "The prosecution appealed .", "The applicant argued before ORG that the right to respect for his home guaranteed by LAW applied to business LOC . He maintained that the interference with his property by the inspector constituted a violation of LAW .", "In a judgment of CARDINAL DATE ORG set aside the judgment , finding :", "“ However , while LAW provides that everyone shall have the right to respect for his private and family life , his home and his correspondence and that a public authority may interfere with that right only under certain very stringent conditions , it is none the less true that the concepts of ‘ private life’ and ‘ home’ remain confined to the personal sphere , although they may in certain circumstances encompass professional and commercial activities .", "In the present case , PERSON inspection was conducted ... in a piggery put to exclusively agricultural use ... [ and ] , given that PERSON simply counted the animals , in no sense in the home of ORG , whose residence and administrative premises are separate from the piggery .", "The report by the inspector of classified establishments is generally drawn up during the inspection , which constitutes an administrative measure .", "Consequently , the provisions of LAW do not apply . ”", "With regard to the merits , ORG found the applicant guilty of not applying for authorisation as required by the rules governing his farm , and sentenced him to a fine of ORG CARDINAL,CARDINAL ( ORG CARDINAL ) . An announcement of the conviction would be published in CARDINAL local newspapers and posted at the entrance to the farm .", "On DATE ORG delivered a judgment , served on the applicant on DATE , dismissing an appeal by the applicant and finding :", "“ ... inspections of establishments under their supervision , carried out under LAW paragraph CARDINAL of the PERSON of DATE by the inspectors of classified establishments , do not constitute general searches or house searches within the meaning of Articles CARDINAL and CARDINAL of LAW . ”", "This PERSON governed all establishments which were a potential source of significant harm or nuisance to the surrounding area and the environment ( section CARDINAL ) . It imposed legal and practical requirements on farmers , such as the requirement to obtain authorisation or give notice ( see section CARDINAL below ) . LAW has since been repealed and its provisions consolidated in ORG CARDINAL - CARDINAL to L CARDINAL - CARDINAL of the Environment Code .", "The relevant provisions are consolidated in Articles L. CARDINAL - CARDINAL et seq . of the Environment Code . The PERSON , as it stood at the relevant time , provided :", "“ The provisions of this part shall cover factories , workshops , warehouses , construction sites and , in general terms , establishments owned or operated by any natural person or legal entity under public or private law which are a potential source of harm or nuisance to the surrounding area , public health and safety , agriculture , the conservation of nature and the environment or the conservation of sites , monuments and archaeological remains . ”", "“ Establishments which are a potential source of significant harm or nuisance to the interests referred to in LAW shall be subject to authorisation by the prefecture ...", "Establishments which , although not a potential source of such harm or nuisance , are none the less bound by the general rules laid down by the prefecture to protect the interests referred to in section CARDINAL within the département , shall be required to give notice . ”", "“ The persons responsible for the inspection of classified establishments ... shall take an oath and be bound by professional secrecy ...", "They may inspect the establishments under their supervision at any time . ”", "“ Anyone who operates an establishment without the required authorisation shall be liable to a prison sentence of DATE and/or to payment of a fine of between ORG and FRF CARDINAL,CARDINAL ... ” .", "“ The following persons shall be liable to the fine laid down for Class CARDINAL infringements :", "Anyone operating an establishment which is subject to notice without having given notice as required by CARDINAL of the PERSON of DATE ... ” .", "Pigs ( establishments for rearing , selling , transporting , etc . ) in pens or outdoors :" ]

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[ "The purpose of the ORG ’s request is to obtain a decision from the ORG as to whether the facts of the case do or do not disclose a violation by GPE of the obligations binding on it under LAW para . CARDINAL ( article CARDINAL ) of the Convention .", "The relevant facts of the case as they appear from ORG and memorial , the Government ’s memorial , the documents produced and the addresses of the representatives appearing before the ORG may be summarised as follows :", "PERSON , a NORP citizen , born on DATE , and a company director , has his residence at GPE . At the time of lodging his ORG with the Commission ( DATE ) , he was imprisoned in the central gaol at PERSON .", "Proceedings having been instituted against him by the Procureur du Roi at GPE for obtaining money by menaces , fraud and fraudulent conversion , the PERSON was arrested on DATE and subsequently charged with a number of offences of fraud , fraudulent conversion , forgery and uttering forged documents , issuing uncovered cheques and fraudulent bills as well as obtaining credit by false pretences .", "On DATE , he was found guilty by ORG on DATE out of QUANTITY counts and sentenced to a DATE ’s imprisonment and a fine of MONEY .", "On DATE , ORG in GPE modified this judgment against which both GPE and the prosecution had appealed on CARDINALth and CARDINALth DATE . It found all the charges to be established including those on which GPE had been acquitted at first instance , stressed the seriousness of the offences and referred to his previous convictions . It accordingly increased his principal sentence to DATE imprisonment and further decided that on serving his sentence he should be \" placed at the disposal of the Government \" for DATE thus granting an application by the prosecution which had been rejected by ORG .", "On DATE , the Applicant appealed to ORG against the judgment of ORG and against that of ORG . He lodged a memorial on DATE . The ORG department ( parquet ) at ORG did not avail itself of its right to file a counter - memorial . A public hearing took place before the second chamber of ORG on DATE ; the Applicant himself was present at that hearing but not his counsel . ORG heard the report of Judge PERSON , its rapporteur , and then the submissions of the PERSON général , Mr. PERSON , to the effect that the CARDINAL appeals should be dismissed . In its judgment delivered DATE , after deliberations held in private the ORG dismissed the CARDINAL appeals .", "In the ORG which he lodged with the Commission on DATE ( No . CARDINAL ) , GPE complained of the judgment of CARDINALst DATE and the judgments on appeal of DATE and DATE . Protesting his innocence and alleging the violation of ORG CARDINAL , CARDINAL , DATE and DATE ( article CARDINAL , article CARDINAL , article CARDINAL , article DATE ) of the LAW , he presented numerous complaints almost all of which were declared inadmissible by the Commission on DATE and CARDINALth April CARDINAL . On DATE , however , the ORG accepted CARDINAL complaint which related to the question whether the presence of a member of ORG department at the deliberations of ORG was compatible with the principle of \" equality of arms \" and hence with Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention .", "In fact , the PERSON général , Mr. PERSON , was present at the ORG ’s deliberations in accordance with LAW which provides \" ... in cassation proceedings the ORG général has the right to be present , without voting , when the ORG retires to consider its decision \" . It may be observed that this Decree has recently been replaced by certain provisions of the new LAW of CARDINALth DATE ) which was not yet in force when ORG dismissed PERSON ’s appeals . The above - mentioned provision of the CARDINAL Decree has been re - enacted , in substance , in LAW .", "Following the decision of CARDINALth April CARDINAL declaring this complaint admissible , a ORG ascertained the facts of the case .", "Before the ORG and ORG , the PERSON maintained that the presence of a member of ORG department at ORG at the deliberations of DATE had violated Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW . Without disputing that there is a considerable difference between the respective functions of ORG department at ORG and the Procureur général ’s department at the courts below , he stressed that in accordance with the law the former does sometimes appear as a party even though this did not happen in this case . Furthermore , the ORG department at ORG does , in the view of the Applicant , exercise supervision over the GPE généraux at ORG ( section CARDINAL of GPE of DATE ) ; a very strong statutory tie , therefore , links him with them , his subordinates , even if in practice the supervision in question is nowadays rather discreet . Again , the ORG department at ORG was , in the great majority of cases , the opponent - at any rate potential - of the convicted persons who appealed to the highest court in GPE : the Procureur général usually submitted that their appeals should be dismissed and his opinion was nearly always adopted - as in this case - by the judges . Then the Applicant stressed that the Procureur général , after having developed his submissions at the end of the hearing in open court , also participated in its private deliberations from which the parties are excluded . This caused a violation of the rights of the defence and , particularly , of the principle of \" equality of arms \" , as it was defined in the opinions given by the Commission in the PERSON , ORG , PERSON and GPE cases ( Applications Nos . CARDINAL/CARDINAL , QUANTITY , CARDINAL/CARDINAL and DATE , ORG , Vol . CARDINAL , pp . CARDINAL to CARDINAL and CARDINAL to CARDINAL ) . The Applicant specified that he did not mean , however , to raise the slightest doubt as to the absolute conscientiousness with which ORG fulfils its function or to suggest that the ORG department might attempt unduly to influence the court in any direction other than that of strict justice . In other words , GPE was not criticising persons but rather the institution which gave an advantage to ORG department . Admittedly , the legislation in issue dated back for DATE and ORG had decided on CARDINAL occasions that it did not need to amend it . The legislation , however , dated from a time of absolute monarchy and carried that stamp ; furthermore , the incorporation of the LAW into the domestic law of a ORG necessarily \" kept bringing to light new controversial points which had not been noticed by the national legislature \" .", "In his observations of DATE , DATE after the lodging of the LOC , GPE further complained that he had not been able to reply to the submissions of ORG department at ORG : he had not been informed of this submission before the hearing of DATE nor did he have the right to the last word at that hearing .", "The Applicant applied for the repeal of the legislation under attack and claimed pecuniary damages .", "On the failure of the attempt made by ORG to arrange a friendly settlement , ORG drew up a ORG as required under LAW article CARDINAL ) of the LAW . This ORG was adopted on DATE and transmitted to ORG on DATE . ORG expressed therein , by CARDINAL votes against CARDINAL , the opinion that Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW was not violated in the present case . CARDINAL members of the majority expressed a joint concurring opinion and the CARDINAL members forming the minority expressed their dissent in a joint opinion .", "After the case was referred to the ORG , the PERSON returned to and developed some of his earlier arguments in a document which the ORG appended to its memorial . As regards his main complaint , the PERSON stated that he associated himself with the opinion of the minority of the Commission .", "Arguments of the ORG and the Government", "Unlike the Government , the Commission considers unanimously that Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW is applicable in the present case to the proceedings in cassation .", "In the view of the majority of the Commission , however , the presence of a member of ORG department attached to ORG at the deliberations of DATE was not incompatible with this text . In actual fact , this highest court in GPE does not deal with the merits ( fond ) of cases ( Article CARDINAL of the LAW and LAW of DATE ) ; save in certain exceptional matters , irrelevant to this case , ORG sole function is to decide questions of law . The ORG department is confined to assisting ORG in the exercise of its functions . That department does not , ordinarily , conduct prosecutions and it has not the character of a party ( LAW ) . In almost all cases it is completely independent of the Minister of ORG and has no right of direction over the ORG department which is attached to the courts of first instance and appeal and which is the prosecuting authority in normal cases . The participation of the ORG department at the deliberations of ORG does not , therefore , conflict with the principle of \" equality of arms \" , even when it is examined in the light of the precedents set by ORG ( PERSON , ORG , PERSON and GPE cases ) .", "The Delegates of the Commission brought to the attention of the ORG the joint dissenting opinion of CARDINAL members of the Commission : these members of the Commission were of the opinion that the participation of the ORG department at the deliberations of ORG did not comply with the requirements of Article CARDINAL para . CARDINAL ( article CARDINAL ) .", "The Commission did not deem it necessary to express an opinion on the \" new \" complaints which appeared in GPE ’s above - mentioned observations of CARDINALth DATE ( paragraph CARDINAL above ) ; in the ORG ’s view , the Applicant presented them only as special aspects of the principle of \" equality of arms \" which the majority of the Commission did not consider to be violated .", "In its memorial of CARDINALnd DATE and at the hearing held on DATE , the ORG requested the ORG :", "\" to decide whether or not , in the course of the proceedings before ORG in the GPE case on DATE , there was a violation of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW , insofar as this provision requires a fair trial , by reason of the participation of the representative of ORG department in the deliberations of ORG \" .", "The Government does not dispute that a member of ORG department at ORG , after submitting in open court that the Applicant ’s appeals should be refused , was present in a consultative capacity at the deliberations of DATE , but maintains that this did not involve any violation of the right guaranteed by LAW CARDINAL ( article CARDINAL ) of the Convention .", "That highest court in GPE does not deal with the merits of cases ( Article CARDINAL of the LAW and LAW of DATE ) . In spite of its judicial nature , which has been developed through a long evolution , ORG fulfils a function which has never ceased to have some relation with the work of the legislature . Established in the interests of the law itself , ORG judges judgments and not persons , save in certain exceptional matters which are irrelevant to the present case . It is not therefore the function of that ORG to decide disputes concerning civil rights and obligations or to determine criminal charges ( décider , soit des contestations sur ses droits et obligations de caractère civil , soit du bien - fondé de toute accusation en matière pénale ) within the meaning of Article CARDINAL para . CARDINAL ( article CARDINAL ) , as that provision has been interpreted in a series of decisions by the bodies set up to ensure the observance of the Convention .", "As regards the Procureur général ’s department at ORG , it must be distinguished fundamentally from the ORG department attached to the courts below . As a general rule , it has not the character of a party ( LAW DATE ) ; in the very rare cases where under the relevant law the department assumes the position of a party and institutes prosecutions the Procureur général is not present at the deliberations ( Article CARDINAL of the Decree of DATE ) . As the Procureur général is not concerned with the question of the guilt of the accused , he is neither their adversary nor the tool of the prosecution . For example , there is nothing to prevent him from submitting to the ORG that an appeal in cassation brought by ORG department at ORG should be dismissed or from putting forward on his own initiative grounds for setting aside a conviction ; and there are statistics to show that this is often the case . The ORG department attached to ORG is not , therefore , in alliance with the ORG department attached to the courts below ; besides , the ORG général at ORG exercises , in practice , over that department supervision of a purely doctrinal and scientific nature without the least power of direction ( LAW of DATE ) . Furthermore , the ORG général at ORG is entirely independent in his relations with the Minister of Justice .", "In short , the role of the Procureur général is of the same kind as the functions of ORG itself : it consists , ordinarily , in no more than giving technical and objective assistance to the ORG in order to ensure the observance of the law , consistency in judicial precedent and good drafting of the judgments . To sum up , the ORG général attached to ORG \" forms part of , and is identified with \" , the ORG like the judges . In these circumstances , the presence of CARDINAL of the members of ORG department at the deliberations did not upset the \" equality of arms \" to the detriment of the Applicant . There was some inequality in this case but it worked to the advantage of GPE ; unlike him , the ORG departments attached to the lower courts whose decisions were challenged in cassation did not have an opportunity to put forward their arguments in open court on DATE ( LAW ) ; those departments did not even avail themselves of their right to reply in writing to the memorial filed by the appellant on DATE . In the ORG ’s view , the GPE case can not be compared with the PERSON and GPE cases ; the present case is closer to the PERSON and NORP cases in which ORG and ORG did not find any violation of LAW ) .", "For the rest , the legislation in dispute is DATE , in which time it has never been subjected to criticism in GPE by writers or the Bar who are , however , most attentive to everything which relates to the rights of the defence . On CARDINAL occasions , ORG decided explicitly to maintain this legislation , the first time without any change ( at the time of the passing of the Act of DATE ) , the second time in substance and after examination of the question from the point of view of LAW ) . These circumstances raise something like a presumption in favour of the compatibility of the legislation in question with Article CARDINAL para . CARDINAL ( article CARDINAL ) ; they also show that the participation of ORG department at the deliberations of ORG does not open the door to abuse .", "As to GPE ’s \" new \" complaints , they are inadmissible because they were not included in the original ORG . The Government considers that they are in any event unsustainable ; in its view , it is just because ORG department is not a party that its submissions are made at the end of the oral proceedings without being communicated in advance to the parties .", "In its memorial of DATE and at the oral hearing held on DATE , the ORG asked the ORG :", "\" to hold that , having regard to the role which NORP law confers on the Procureur général attached to ORG and to his special position in NORP judicial procedure , his presence in a non - voting capacity at the ORG ’s deliberations as expressly provided for in that legislation is not of such a nature as to violate the principle of ‘ equality of arms’ where , as in the present case , the Procureur général is not himself a party to the proceedings as applicant ;", "to decide in consequence that , in the proceedings which took place in the GPE case before ORG on DATE , there was no violation of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW by reason of the presence of the representative of ORG department , Mr. PERSON , PERSON général , at the deliberations of the judges \" ." ]

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[ "The applicant , PERSON , is a NORP national , who was born in DATE and lives in the village of GPE of LOC . ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is a retired serviceman . On unspecified dates in the past , he had taken part in peace - keeping operations in former GPE and GPE .", "On unspecified dates , the applicant instituted CARDINAL sets of proceedings against military unit no . DATE , seeking to recover the unpaid DATE allowances owed to him for his participation in the above operations .", "In the proceedings before ORG of FAC ( ORG гарнизонный военный суд ) the representative of the military unit fully accepted both the applicant ’s claims . He submitted that it was impossible to pay the sums owed to the applicant , since there was no mechanism developed for payment of DATE allowances to servicemen who had been commissioned abroad . Furthermore , no funds were available for this purpose .", "On DATE ORG of FAC granted the applicant ’s first claim and ordered the defendant to pay him MONEY ( “ RUR ” , MONEY at the material time ) . The court found that the applicant could not be deprived of the right to receive the sums owed to him because of the absence of an appropriate mechanism of payment . No appeal was lodged and this judgment became final on DATE .", "On DATE ORG of FAC granted the applicant ’s second claim and ordered the defendant to pay him ORG ( MONEY at the material time ) . The court came to the same finding as above . No appeal was lodged and this judgment became final on DATE .", "On DATE ORG issued CARDINAL execution writs .", "On an unspecified date , the applicant submitted the execution writs to ORG of ORG . He was advised to apply to ORG for the latter to recover the amount due from ORG .", "On DATE the applicant forwarded the execution writs to ORG .", "According to the ORG , the ORG acted under the procedure set out in Decree No . CARDINAL and notified ORG about the applicant ’s claims , requesting it to pay .", "By payment order no . CARDINAL of DATE the applicant received the outstanding amount of ORG in full .", "Section CARDINAL of LAW of DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that a coercive action will follow , should the defendant fail to comply with the time - limit .", "Under LAW of the LAW , the enforcement proceedings should be completed within DATE upon receipt of the writ of enforcement by the bailiff .", "Under special rules governing enforcement of execution writs against the recipients of allocations from the federal budget , adopted by ORG on DATE ( Decree No . CARDINAL , as in force at the relevant time ) , a creditor is to apply to a relevant branch of ORG holding debtor ’s accounts or , in certain cases , to ORG ( Sections CARDINAL to CARDINAL ) .", "Within DATE the branch examines the application and notifies the debtor of the writ , compelling the latter to abide by the respective court decisions ( Sections CARDINAL to CARDINAL ) . In case of the debtor ’s failure to comply within DATE , the branch may temporarily freeze the debtor ’s accounts ( see LAW ) ." ]

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[ "Ilinden is an association based in southwest GPE , in an area known as the GPE region or the geographic region of LOC .", "Ilinden was founded on DATE . Its aims , according to its articles of association and programme , were to “ unite all NORP in GPE on a regional and cultural basis ” and to achieve “ the recognition of the NORP minority in GPE ” . Clauses CARDINAL and CARDINAL of the articles stated that the organisation would not infringe the territorial integrity of GPE and “ would not use violent , brutal , inhuman or unlawful means ” .", "In DATE PERSON applied for , but was refused , registration . In the proceedings for registration , ORG and ORG examined its articles of association , its programme and other written evidence .", "In their decisions of DATE and DATE and DATE the courts found that ORG aims were directed against the unity of the nation , that it advocated national and ethnic hatred and that it was dangerous for the territorial integrity of GPE . Therefore , its registration would have been contrary to ORG , DATE and QUANTITY of the LAW of DATE , as in force at the time . In particular , the aims of the association included the “ political development of GPE ” and the “ united , independent NORP State ” . Moreover , in its appeal to ORG , the association had stated that “ the NORP people [ would ] not accept NORP , NORP or NORP rule ” . The formal declaration in its articles of association that it would not imperil the territorial integrity of GPE appeared inconsistent with the remaining material .", "The judgment of ORG of DATE stated , inter alia :", "“ [ T]he lower courts have correctly established that the aims of [ Ilinden ] under its articles of association and programme were directed against the unity of the nation ... [ The material in the case ] demonstrates that [ Ilinden ] seeks to disseminate the ideas of ORG among the NORP population , especially in a particular geographical area . [ Those ideas ] presuppose the ‘ GPE of the NORP population and its conversion into a NORP population ... It follows that [ Ilinden ] is directed against the unity of the nation and is therefore prohibited under LAW of the [ DATE ] LAW ... ”", "NORP Throughout the period CARDINAL PERSON tried to organise commemorations of historical events DATE on certain dates in DATE , DATE and DATE , on various sites in GPE . Almost all of the commemoration gatherings were banned by the authorities , often on the basis of the organisation not been registered . In some instances the courts refused to examine appeals against such bans on the same ground ( for the period DATE see PERSON and ORG v. GPE , ORG CARDINAL and CARDINAL , § § DATE , DATE , and CARDINAL , ORG CARDINALIX ; for the period DATE see ORG and PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL , DATE ) .", "On DATE the applicants , together with CARDINAL , CARDINAL or QUANTITY other persons , held a meeting in GPE . There are CARDINAL versions of TIME of this meeting . The first CARDINAL states that QUANTITY persons adopted a resolution to reapply for registration of GPE . The second CARDINAL states that QUANTITY persons decided to found a nonprofitmaking association named ORG . Both versions state that the persons present adopted the articles and elected the management committee and the chairman of the association .", "The relevant clauses of the articles of association of ORG adopted at that meeting read :", "“ CARDINAL . [ Ilinden ] is a national NORP organisation , on ethnical basis and origin ... which is the successor and continuer of the national liberation struggle of the NORP nation ... and of the NORP fighters who have fallen victim to the NORP State terrorism and genocide .", "CARDINAL(CARDINAL ) . Ilinden recognises and respects the territorial integrity of GPE and its laws and LAW , provided they are consistent with the international law and the international agreements on human rights , fundamental freedoms and the rights of minorities .", "CARDINAL ) . [ Ilinden ] supports the international law [ rules providing that ] borders between countries may be altered peacefully through negotiations .", "NORP The goals and objects of [ Ilinden ] ... [ are ] to express and defend the civil , political , national , social , and economic rights of NORP living on NORP land under NORP occupation ( jurisdiction ) and of the NORP living in GPE .", "CARDINAL ) . [ Ilinden ] will protect the NORP subjected to assimilation by the NORP nationalistic policies .", "CARDINAL(CARDINAL ) . [ Ilinden will seek the r]ecognition of a status of cultural autonomy of LOC [ in order to ] halt the process of assimilation of the NORP .", "...", "CARDINAL(CARDINAL ) . [ and the g]iving of autocephalous status of the NORP church in GPE with a view to cutting off the assimilation activities of the NORP priests .", "...", "[ Ilinden ] will strive towards ... liberating the NORP from the feelings of fear of the discrimination and assimilation policies of the [ NORP State ] .", "...", "CARDINAL(CARDINAL ) . [ The means employed by ORG for achieving its goals shall be ] ... the holding of peaceful assemblies , meetings , marches and demonstrations ...", "CARDINAL ) . Participation in elections through nomination of independent NORP candidates .", "...", "CARDINAL(CARDINAL ) . Every NORP , as well as a citizen of another ethnicity , may become a member of the organisation . ”", "On DATE the applicants lodged an application for the registration of Ilinden with ORG . They submitted to the court a copy of the first version of TIME of the DATE meeting ( see paragraph CARDINAL above ) . Finding that CARDINAL member of the management committee had not signed the application for registration and that the filed copy of the articles of association had not been signed either , the court invited the applicants to submit duly signed copies of the application and the articles . On DATE one of the applicants filed a signed application and an unsigned copy of the articles . The court also instructed the applicants to produce a copy of the resolution for the founding of Ilinden . On DATE an unsigned copy of the second version of TIME DATE meeting ( see paragraph CARDINAL above ) , containing a resolution for the founding of GPE and the names of CARDINAL purported founders , was filed with the court . A hearing was held on DATE . On DATE a copy of the second version of TIME ( see paragraph CARDINAL above ) , signed by QUANTITY persons , was filed with the court . At a hearing held on DATE the applicants stated that this second version had been drafted by an attorney and had been signed by the founders before the first hearing on DATE . The court admitted the document in evidence .", "The Blagoevgrad Regional Court gave judgment on DATE . It rejected the application in the following terms :", "“ By DATE ) of ORG [ of DATE ] , the application for registration of a nonprofitmaking association must be accompanied by a resolution for its founding [ and ] its articles of association , signed by the founders ...", "In their application for registration the members of the management committee state that in DATE the organisation was denied registration ... , which may lead to the conclusion that the resolution for the founding of ORG was adopted ... at the latest in DATE . This conclusion is supported by the first version of TIME . This version states that at a meeting held on DATE in GPE , with CARDINAL persons present , the question of the reregistration of GPE was discussed ...", "In a letter of DATE the court instructed the applicants to present a resolution for the founding of the association . Following this instruction the applicants submitted unsigned minutes dated DATE , which reflect a different agenda and different decisions . These new minutes contain an express resolution for the founding of GPE , for the adoption of its articles of association and the electing of a management committee . The heading of TIME indicates that QUANTITY persons were founders . An additional , signed version of these TIME bears the signatures of QUANTITY persons . CARDINAL of the alleged founders ... have not signed the minutes of DATE , while the CARDINAL state that the resolution for the founding of the association was adopted by unanimity . However , these persons have signed the [ first version of the minutes ] , which contain the resolution to re - register PERSON . [ During the hearing ] on DATE the members of the management committee averred that there had only been CARDINAL meeting , [ which took place ] on DATE . In view of these circumstances , the court considers that it has not been categorically established that a resolution for the founding of ORG was adopted on DATE . It is unclear who the founders were , because there are CARDINAL versions of TIME , signed by different persons and having different contents . Thus , CARDINAL of the absolute prerequisites of section CARDINAL ) of the [ Persons and Family Act of DATE ] – a resolution for the founding the association DATE is missing .", "The second mandatory attachment to the application for registration – articles of association signed by DATE is likewise missing .", "When the applicants first applied for registration on DATE ... , they were instructed to submit articles of association signed by the founders . This instruction has not been complied with . The articles ... dated DATE are not signed . Alongside the articles the applicants have submitted a separate sheet , stating : ‘ The articles of association of Ilinden were discussed and adopted at the founding meeting on CARDINAL DATE CARDINAL’ . Only the signatures of the members of the management committee follow . The presentation of articles of association signed by the founders is an absolute prerequisite for [ registration ] . On this ground alone DATE the failure to comply with the requirements of section CARDINAL ) of the [ Persons and Family Act of DATE ] – the registration of [ Ilinden ] must be refused .", "The court considers it necessary to note that , alongside the above - mentioned [ reasons to refuse registration ] , there are a number of serious discrepancies between the submitted articles of association and the laws of [ GPE ] , which render the registration inadmissible .", "In clause CARDINAL of its articles of association [ Ilinden ] defines itself as a ‘ NORP national organisation on ethnical basis and origin ... which is the successor and continuer of the national liberation struggle of the NORP nation ... and of the NORP fighters who have fallen victim to the NORP State terrorism and PERSON .", "This text clearly shows that the association considers itself a ‘ ORG and continuer of ... the ‘ national liberation struggle of the NORP nation’ ... The evoking of historical events in which the NORP people fought for the protection of its national interests [ and ] for the restoration of ORG is puzzling in the context of an activity which is to be carried out against this same ORG . It is not clear how an association may be a ‘ ORG of ‘ fighters fallen victim’ but probably the applicants wanted to underscore that they intend to lead a ‘ national liberation struggle’ on the territory of GPE through uprisings , which process is expected to lead to victims . Read this way , clause CARDINAL of the articles raises serious doubts as to the peaceful means for the achievement of the goals of the association declared in clause CARDINAL . Clause CARDINAL ) of the articles recognises the territorial integrity of the country , its laws and LAW , but under a condition : ‘ if they are consistent with the international law and the international agreements on human rights , fundamental freedoms and the rights of GPE . The reservations relating to respect for the territorial integrity of the country continue in clause CARDINAL ) of the articles , which introduces the concept of modification of the borders through ‘ negotiations’ . The association ’s goal DATE to achieve a modification of the borders of GPE through taking of territory away – is clearly spelled out in clause CARDINAL of the articles , which indicates that [ Ilinden ] ‘ expresses and defends the civil , political , national and social and economic rights of NORP living on NORP land under NORP occupation ( jurisdiction ) and of the NORP living in ORG . The use of the term ‘ occupation’ indicates that , according to the applicants , GPE includes forcibly annexed ‘ ORG lands , for the liberation of which they will lead a ‘ national liberation struggle’ . This idea is underscored in several other provisions of the articles . Thus , clause CARDINAL speaks of protection against NORP ‘ ORG through cultural autonomy of GPE , which takes as a given that the population there is not NORP , clause CARDINAL [ speaks of ] ‘ taking the NORP out’ of the state of [ being subjected to ] ‘ discrimination and ORG by ORG .", "Clause CARDINAL of the articles indicates that the association will organise peaceful assemblies , meetings , marches and demonstrations with demands for political rights , and that it will participate in elections through the nomination of candidates . Therefore , even though it claims to be a non - profitmaking association , PERSON proclaims that it will carry out a political activity within the meaning of LAW of LAW [ of DATE ] and section CARDINAL(CARDINAL ) of LAW [ of DATE ] .", "LAW [ of DATE ] provides that associations may not pursue political goals and carry out political activities that are characteristic solely of political parties . This prohibition is developed in section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW [ of DATE ] . An association which pursues political goals such as those clearly designated by the applicants here may not be registered [ as such ] .", "Apart from the political character of the goals and of the future activity [ of the association ] , the aforesaid leads to the conclusion that [ Ilinden ] is an organisation directed against the sovereignty , the territorial integrity and the unity of the nation and towards the incitement of national hatred , and is not categorically excluding the use of violence .", "Clauses CARDINAL , CARDINAL , DATE , DATE , and CARDINAL of the articles of the association contain suggestions [ that there exists ] a NORP ethnos [ constituting a ] minority and deprived of the rights that the LAW [ of DATE ] bestows upon all NORP citizens .", "There is no NORP minority in GPE . There are no historical , religious , linguistic , or ethnical grounds for such an assertion . [ Such an assertion ] , coupled with the declarations alleging ‘ assimilation , discrimination and xenophobia’ in respect of the ‘ Macedonians’ , is in reality directed against the unity of the nation . Every organisation committed to such a political platform is prohibited by virtue of Article CARDINAL § QUANTITY of the LAW [ of DATE ] . ... ”", "NORP The management committee of GPE appealed to ORG . They argued that ORG had deliberately misconstrued the articles of association . ORG had no political goals and had never intended to dispute the territorial integrity and the sovereignty of GPE , nor to incite violence or ethnic hatred . The court had refused registration because of its mistaken finding that the articles insinuated the existence of a NORP ethnos having a minority character . Also , as there had apparently been doubt about technical problems with the registration documents , the management committee submitted a fresh copy of TIME of the association ’s founding meeting . It also submitted a list of signatures of the founders of ORG who were not members of the management committee , apparently with the purpose of remedying the deficiency noted by ORG – that the articles of association bore the signatures of the members of the management committee only , not of all founders .", "The Sofia Court of Appeals dismissed the appeal in a judgment of CARDINAL DATE . The relevant part of its opinion read :", "“ ... this court finds that the prerequisites for entering [ Ilinden ] in the register of nonprofitmaking legal persons are missing . The first irregularity of the association is that the submitted articles are not signed by the founders , as required by section CARDINAL of the Persons and Family Act [ of DATE ] . Furthermore , the articles contain a number of clauses which do not allow the registration of the association . Clause CARDINAL indicates that [ Ilinden ] shall be ‘ a NORP national organisation [ based ] on ethnicity and origin’ , and clause CARDINAL provides that ‘ only a ORG may be a member of the organisation ; such type of association is inadmissible and contrary to LAW [ of DATE ] , which prohibits privileges based on ‘ nationality , ethnicity , origin’ ...", "In clause CARDINAL of its articles the association sets itself political goals , which it may pursue only if registered [ as a political party ] . The formulated aims , such as ‘ participation in elections’ [ and ] the holding of ‘ meetings , marches and ORG run also against LAW [ of DATE ] , which does not allow associations to perform political activities . The legal definition of the term ‘ political activity’ set out in section CARDINAL(CARDINAL ) of LAW [ of DATE ] indicates that it comprises precisely the holding of meetings , demonstrations , assemblies and other forms of public campaigning .", "Clause CARDINAL of the articles provides that the association will carry out activities that are characteristic of a denomination ... : ‘ struggling to achieve an autocephalous status of the NORP church and cutting off the assimilation activities of ORG [ ; such activities ] may be carried out only by nonprofitmaking organisations registered under section ORG of ORG [ of DATE ] and LAW [ of DATE ] .", "The proposition of the applicants is that the association should be registered because its articles do not set forth political aims and the association is not established on an ethnical or a national basis . These assertions are unfounded . On the one hand , the submitted articles of association have not been signed by the founders , which precludes the possibility of registration ... On the other hand , the activities the articles envisage ... may not be carried out by such a type of association . This indicates that the irregularities in the founding of the association may not be rectified through the additional presentation of evidence ; the registration is therefore impossible . ”", "NORP The management committee of GPE appealed on points of law to ORG . They argued that ORG had erred in holding that the formation of an association could lead to discrimination . On the contrary , it was the exercise of a fundamental right . Also , ORG did not pursue any of the activities proscribed by LAW . As regarded the alleged political goals and activities of the association , they submitted that ORG had misconstrued the term “ political activity ” : the holding of meetings and marches was not the prerogative of political parties – they could be organised by any organisation or person . The statement of the court that the meaning of clause CARDINAL of its articles of association was that ORG intended to engage in religious activities was tendentious and untrue . In addition , the applicants complained that ORG had repeated the conclusion of ORG that they had not submitted a duly signed copy of the articles of association , apparently disregarding the fresh documents they had presented together with their appeal from the latter ’s judgment .", "ORG gave judgment on DATE . It dismissed the appeal in the following terms :", "“ ... The appeal is illfounded .", "The [ PERSON ] ORG found that the submitted articles of association have not been signed by the founders , as mandated by the imperative rule of section CARDINAL of the [ Persons and Family Act of DATE ] . Secondly , the articles contain a number of clauses precluding the registration of the association . Clauses CARDINAL and CARDINAL contravene LAW [ of DATE ] , clause CARDINAL [ contravenes ] LAW [ of DATE ] in conjunction with LAW ) of the [ LAW of DATE ] , [ and ] clause CARDINAL [ runs counter to ] section ORG of the [ Persons and Family Act of DATE ] .", "The judgment of the [ GPE ] ORG is correct . The finding that the legal requirements for the registration of the association have not been met corresponds to the documents in the case file and more specifically to the articles of association [ of ORG ] .", "An association is registered pursuant to an application by its management committee which must be accompanied by a resolution for its founding and its articles , signed by the founders . This means a signed copy of the articles and not separate lists and TIME . [ In addition , ] LAW [ of DATE ] does not allow privileges on the basis of nationality , ethnicity , origin , etc . By LAW [ of DATE ] , associations may not pursue political goals and carry out political activities characteristic solely of political parties . Account should also be taken of LAW of the [ LAW of DATE ] . ”", "On DATE Ilinden lodged another application for registration with ORG . In a judgment of DATE the court refused to register the association . Its opinion read , as relevant :", "“ The evidence ... indicates ... that the activities of the organisation which seeks registration are directed against the sovereignty and the territorial integrity of the country and the unity of the nation . This is apparent from the main goals of the association ... and the means for their achievement ...", "The way they are formulated ... indicate[s ] their political character . ... The organisation states that it is a successor and continuer of the ‘ national liberation struggle of the NORP nation’ , including the ‘ NORP fighters who have fallen victim to the NORP State terrorism and GPE Its articles of association ] specify that [ the organisation ] will respect the territorial integrity of GPE , but only if ‘ [ it is ] consistent with the international law and the international agreements on human rights , fundamental freedoms and the rights of GPE ; [ that the organisation ] will ‘ voice and protect the civil , social and economic rights of the NORP who live on NORP soil under NORP occupation ( jurisdiction ) and of the NORP who live in GPE The articles also ] insist that ‘ the process of assimilation in LOC must be stopped’ . Obviously , the aim is to distort the historical truth and to ignore the NORP character of certain geographical regions [ and ] to cause overt opposition of CARDINAL part of the population to another . This also threatens the territorial integrity of the country , while Article CARDINAL § CARDINAL of the LAW [ of DATE ] prohibits organisations engaging in such an activity .", "Even if , despite [ what was found ] above , it is assumed that the activities of [ Ilinden ] do not run counter to LAW [ of DATE ] , by LAW thereof associations may not pursue political goals and carry out political activities that are characteristic solely of political parties . The political character of the aims [ of GPE ] is clearly indicated by [ its articles of association ] , while the [ applicable law ] provides that organisations seeking to engage in political , trade union or religious activities shall be regulated in a separate statute .", "All this leads to the conclusion that what is sought is the registration of an association whose aims are illegal . It can not be accepted that what is at issue is an organisation seeking to preserve the historical traditions and the cultural riches of a specific community . ... The realisation of the true aims [ of ORG ] would no doubt be at the expense of the unity of the NORP nation [ and ] the sovereignty and the territorial integrity [ of the country ] , which is declared inviolable by LAW [ of DATE ] . ”", "Ilinden ’s ensuing appeal was dismissed by ORG in a judgment of DATE . The court held that the aims of ORG were political , which was impermissible for a nonprofitmaking association . It further held that the aims of ORG were directed towards a “ twisting of the historical truths and towards ignoring the NORP character of certain geographical regions , with a view to causing overt opposition of CARDINAL part of the NORP citizens against another , which imperil[ed ] the territorial integrity of the country and the unity of the nation , in breach of the imperative rule of LAW [ of DATE ] ” . Finally , the court held that there had been an irregularity in the number of elected members of the association ’s management committee .", "Ilinden ’s appeal on points of law to ORG was likewise dismissed , in a final judgment of CARDINAL DATE . The court held that ORG ’s activity , which would include protecting the ‘ civil , social and economic rights of the NORP living on NORP soil and of the NORP living in ORG ran counter to LAW . Even assuming that this was not the case , registration was impossible , because ORG aims were in reality political , as indicated by its declarations that it was a continuer of the “ national liberation struggle of the NORP nation ” and that its founders were “ spiritual successors of ‘ the NORP fighters which had fallen victim of the NORP state terrorism and PERSON ” , which was impermissible for a nonprofitmaking association . Finally , the court endorsed ORG finding that there had been an irregularity in the number of elected members of the management committee .", "The relevant provisions of the LAW of DATE read as follows :", "“ The territorial integrity of GPE shall be inviolable . ”", "“ All citizens shall be equal before the law . There shall be no privileges or restriction of rights on the grounds of race , nationality , ethnicity , sex , origin , religion , education , opinion , political affiliation , personal or social status , or property status . ”", "“ Parties shall facilitate the formation of the ORG political will ... ”", "“ Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties . ”", "“ Everyone shall have the right to peaceful and unarmed assembly at meetings and marches . ”", "“ CARDINAL . Citizens may freely associate .", "Organisations whose activities are directed against the sovereignty [ or ] the territorial integrity of the country and the unity of the nation , towards the incitement of racial , national , ethnical or religious enmity ... as well as organisations which seek to achieve their goals through violence are prohibited .", "The law shall specify the organisations which are subject to registration , the manner of their dissolution , as well as their relations with the ORG . ”", "At the material time this LAW , the relevant provisions of which were subsequently superseded by LAW ( see paragraph CARDINAL below ) and some other statutes , regulated the formation , status and dissolution of nonprofitmaking legal persons . Its pertinent provisions were :", "“ GPE legal entities carrying out an activity characteristic of a denomination or performing a religious or a religious educational activity shall be registered ... after assent being given by ORG . ”", "“ An association shall acquire legal personality after its entry in the register [ kept by ] ORG . ”", "“ An association shall be registered pursuant to an application by [ its ] management committee [ to which shall be enclosed ] a resolution for its founding and its articles of association , signed by the founders ... ”", "“ Associations shall be managed in accordance with [ their ] articles of association , which must contain provisions in respect of [ their ] name , goals , means ... ”", "“ ... An association may be dissolved by decision of ORG if ... its functioning is contrary to law , its articles or the state and public order ... ”", "This act , which was superseded by new legislation in DATE , regulated the formation , registration , functioning and dissolution of political parties . Its relevant provisions read as follows :", "“ CARDINAL . A public organisation which has not been registered as a political party may not carry out the activity of a political party .", "A [ public organisation ] which has not been registered as a political party may not carry out organised political activities [ on the LOC of ] enterprises , government agencies and organisations .", "NORP ’Organised political activities’ shall mean the holding of meetings , demonstrations , assemblies and other forms of campaigning in favour of or against a political party or an election candidate .", "NORP If a public organisation ... clearly carries out the activity of a political party , the regional prosecutor shall offer that it be dissolved or register as a political party within DATE .", "ORG If the organisation under the foregoing subsection does not cease its political activity or register as a political party , it shall be dissolved ... ”", "The relevant provisions of this LAW read as follows :", "“ Meetings , rallies and marches may be organised by individuals , associations , political or other civic organisations . ”", "NORP Under DATE ) of this LAW , which came into force on DATE and at present regulates , inter alia , nonprofitmaking associations , the competent regional court may dissolve any association which carries out an activity which is contrary to the law , the public order or morality . By DATE ) of the LAW , the court may act pursuant to the request of any interested person or the public prosecutor ." ]

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[ "The applicants are Mr PERSON and his wife PERSON , both NORP nationals and born respectively in DATE and DATE , and also their CARDINAL children ( born in DATE indicated in brackets ) , who are NORP nationals : PERSON ( DATE ) , PERSON ( DATE ) , PERSON ( DATE ) , PERSON ( DATE ) and PERSON ( DATE ) . The first applicant lives in GPE , GPE , and the other applicants live in PERSON , near GPE , GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "The facts of the case , as described mainly in the judgments of the national courts , may be summarised as follows .", "As his parents were very poor , the first applicant PERSON was cared for by his uncle as his foster father . His uncle arrived in GPE in DATE and declared the first applicant as his son . In DATE , at DATE and after having completed DATE in GPE during which he was taught in oral and written GPE , the latter arrived in GPE . His foster father wished the first applicant to take part in the maintenance of the family in GPE . He was granted a permanent residence permit . In the DATE of DATE he started at a NORP school and completed primary and secondary school in DATE , following which , he took a basic high school course in engineering and mechanics . In DATE he started work and , except for a short break in DATE , he was continuously in stable employment with a relatively good income until DATE , when he was arrested for narcotics offences .", "The first applicant had visited GPE in DATE together with his foster father . He had again visited the country in DATE , in connection with his marriage , in DATE and in DATE . Each visit had lasted DATE . His wife arrived in DATE and they had their first child DATE . The first applicant ’s wife acquired NORP citizenship in DATE , but he never sought to obtain this himself as he had never felt particularly concerned by the question of citizenship .", "On DATE the Eidsivating High Court ( lagmannsrett ) convicted the first applicant under LAW ) , cf . LAW for having assisted in the sale of QUANTITY of heroin and for having sold drugs , probably heroin , for approximately ORG CARDINAL . It sentenced him to DATE and DATE imprisonment . He had no previous convictions in GPE . ORG found it established that the applicant had contacted his co - accused , ORG , a NORP national , to inquire whether he would be interested in marketing heroin in or around PERSON , a small district town in another part of the country . Following an affirmative answer by T. , it was agreed that the latter should go to GPE to collect the heroin . On the agreed date and at the agreed place , T. was contacted by PERSON , also a NORP national , who offered PERSON grams of heroin on the applicant ’s behalf , which T. took to GPE . During the police investigations , the police , with ORG 's co - operation , recorded a telephone conversation between him and the applicant concerning payment for the heroin . Moreover , the police provided T. with ORG CARDINAL,CARDINAL in marked bank notes . On arresting the first applicant and PERSON , the police found NOK CARDINAL of the marked notes in the first applicant 's wallet and CARDINAL in a flat occupied by A. A further ORG CARDINAL were found in the house of the first applicant 's foster father which , it was established , were proceeds from the first applicant 's sale of drugs , mainly heroin .", "While the first applicant served his sentence , his children visited him in prison for TIME and TIME DATE . After having served a third of the sentence , he was permitted to visit his family at home . He was released on probation in MarchApril DATE .", "On DATE ORG ( PERSON ) ordered the first applicant ’s expulsion under the relevant provisions of LAW DATE ( GPE of DATE No . CARDINAL ) . On appeal by the first applicant ORG upheld the decision on DATE , finding that the expulsion would not constitute a disproportionate measure against the first applicant . In reaching this conclusion , the Ministry attached decisive importance to the fact that he had been convicted of offences under , inter alia , Article CARDINAL of the Penal Code and had been sentenced to over DATE imprisonment . Regard was had to the fact that the trial court had found that the first applicant had attempted to sell a considerable quantity of heroin in a milieu which had not previously had problems with this drug and that his actions had been motivated exclusively by the desire for financial gain . The trial court had found it necessary , in view of general considerations of crime prevention , to react strongly against such conduct . Moreover , having regard to the particularly serious nature of the criminal offence in question , ORG did not find that the expulsion would amount to a disproportionate measure vis - à - vis the first applicant 's closest family members .", "The first applicant subsequently instituted proceedings before ORG , which in a judgment of DATE upheld the decision of ORG , following which the expulsion order was put into effect in DATE . At the time his wife was pregnant and very depressed .", "After his return to GPE he lived in a house belonging to his foster father and was unemployed . His eldest child visited him for DATE in DATE and his wife and all his children visited him for DATE .", "The applicants submitted , and adduced certain medical statements in support thereof , that the children suffered from asthma and allergies , and that the wife had suffered physically and psychologically as a result of her husband 's separation from the family .", "An appeal by the first applicant to ORG was rejected by judgment of CARDINAL DATE . The applicant then lodged an appeal with ORG ( PERSON ) , which in a judgment of DATE rejected the appeal .", "In his opinion , Mr Justice Skåre , on behalf of a unanimous court , recalled , inter alia , ORG finding that the second applicant and her children had to a slight degree been integrated into NORP society . They spoke GPE at home and the oldest children had great difficulties with the NORP language at school and in the kindergarten . During the hearing the spouse showed that she had not mastered NORP . As regards the merits of the case , Justice PERSON stated , inter alia :", "“ … Like the criminal cases which form the basis for the expulsion orders at issue in appeal cases nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL , there is no question in this case of such a significant amount of heroin as to warrant the application of Article CARDINAL ( CARDINAL ) of LAW . Nevertheless , it concerns CARDINAL narcotics offences which , according to the nature and quantity of the drugs call for a very severe sentence . ... .", "In the assessment it is also important to note that PERSON has resided in GPE for a long period and that he arrived here quite young . However , he has maintained his links with the NORP milieu , and his links to GPE are not as CARDINAL - sided as one may find in certain cases of more typical secondgeneration immigrants . Also his spouse and children appear to have links to the NORP culture and milieu .", "I have therefore reached the conclusion that the expulsion order can not be regarded as incompatible with LAW . The appeal must be rejected . ... ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "NORP In DATE the applicant retired from ORG . He was entitled to a lump - sum retirement payment and compensation for his uniform , but the payments were not made to him on his retirement .", "In DATE the applicant instituted proceedings in the ORG against ORG , seeking recovery of the debt . On DATE the court allowed his claim in full and ordered the military unit to pay the applicant CARDINAL NORP hryvnias ( ORG ) in compensation for his uniform , ORG CARDINAL in retirement payment arrears , and ORG DATE by way of reimbursement for the court fees . On DATE the court ’s judgment became final and enforceable .", "On an unspecified date the applicant received ORG CARDINAL,CARDINAL.CARDINAL . The remainder of the award remained unpaid .", "The enforcement proceedings concerning the judgment of CARDINAL DATE commenced on DATE . In the course of those proceedings the bailiffs informed the applicant that they had frozen the debtor ’s bank accounts , though no funds had been found in those accounts .", "NORP In a letter of CARDINAL DATE ORG informed the applicant that the legislative provisions entitling him to compensation for his uniform were suspended and that there were no budgetary allocations for such payments .", "On DATE the debtor military unit was disbanded and ORG A-CARDINAL became its successor .", "In a letter of DATE the bailiffs informed the applicant that the latter military unit had no money to pay the applicant in compliance with the judgment of CARDINAL DATE . They also mentioned that the forced sale of assets belonging to military units was prohibited by the law .", "The judgment of CARDINAL DATE remains partially unenforced .", "In DATE the applicant lodged with ORG ( “ the ORG ” ) a complaint against the bailiffs , alleging that the judgment of CARDINAL DATE had not been enforced because of fault on their part . On DATE the court found that the bailiffs had not taken the necessary measures to enforce the judgment in the applicant ’s favour and ordered them to identify and freeze the bank accounts of the debtor military unit in order to seize the money available in those accounts .", "According to the applicant , the bailiffs did not comply with the court ’s ruling of DATE . On DATE he lodged a claim with the same court against the bailiffs , seeking compensation for pecuniary and non - pecuniary damage .", "On DATE the applicant ’s claim was partly allowed . ORG found that the judgment of CARDINAL DATE remained unenforced through the fault of the bailiffs and awarded the applicant ORG CARDINAL in compensation for pecuniary damage and ORG CARDINAL for non - pecuniary damage . On CARDINAL DATE the judgment of CARDINAL DATE became final and enforceable . On DATE an appeal by the applicant against the judgment of CARDINAL DATE was dismissed as having been lodged out of time .", "On DATE the applicant submitted a written request to ORG to issue a writ of execution in respect of the judgment of CARDINAL DATE . The applicant did not receive the writ or a reply to his request . The judgment of CARDINAL DATE remains unenforced .", "NORP Throughout the proceedings against the bailiffs , the applicant was assisted and represented by a lawyer .", "According to the applicant ’s lawyer , in order to substantiate the application in the present case he had tried to obtain some unspecified documents from the applicant ’s case file kept by ORG . On DATE he requested that court to send him all the documents from the case file , without specifying that he needed them for the applicant ’s case before ORG .", "In a letter of CARDINAL DATE ORG informed the lawyer that he had failed to provide a form of authority and thus could not obtain the documents requested .", "The applicant ’s lawyer did not resubmit his request with an authority form .", "Article CARDINAL of the LAW provides as follows :", "“ ... Judicial decisions are adopted by the courts in the name of GPE and are mandatory for execution throughout the entire territory of GPE . ”", "Article CARDINAL of the Code provides :", "“ CARDINAL . Wilful failure of an official to comply with a sentence , judgment , ruling or resolution of a court which has entered into force , or hindrance of its enforcement ,", "shall be punishable by a fine [ in the amount ] of CARDINAL times the statutory non - taxable DATE income , or by deprivation of liberty for a term of DATE with deprivation of the right to occupy certain positions or engage in certain activities for a term of DATE .", "NORP The same actions committed by an official occupying a responsible or especially responsible position , or by a person previously convicted of the crime envisaged by this LAW , or [ the same actions ] causing substantial damage to the legally protected rights and freedoms of citizens , ORG or public interests or the interests of legal entities ,", "shall be punishable by restraint of liberty for a term of DATE , or by deprivation of liberty for the same term with deprivation of the right to occupy certain positions or engage in certain activities for a term of DATE .", "Wilful failure of an official to comply with a judgment of ORG", "shall be punishable by deprivation of liberty for a term of DATE with deprivation of the right to occupy certain positions or engage in certain activities for a term of DATE . ”", "The Act determines the procedure for forcible execution of decisions of courts and of other competent authorities and officials ( “ judgments ” ) .", "Under LAW , the enforcement of judgments is entrusted to ORG , which forms part of ORG . Other entities and officials may also carry out enforcement in accordance with the law . In particular , pursuant to section CARDINAL , the bodies of ORG are responsible for the enforcement of judgments concerning recovery of money from the ORG or local budgets or entities financed from the ORG budget .", "The Act confers a wide range of powers on bailiffs in enforcement proceedings . In particular , they are entitled to seek and obtain , from any person concerned , information and documents that are necessary for the enforcement of decisions , to enter and inspect premises belonging or occupied by debtors , to seize and sell ORG , to freeze DATE bank accounts , and to impose fines on citizens and officials in cases envisaged by the law ( sections CARDINAL of the Act ) . The bailiffs’ orders concerning the enforcement of judgments are binding on all entities , organisations , officials and common citizens in the territory of GPE . Pursuant to sections DATE of the LAW , the bailiffs are entitled to punish persons failing to comply with their orders by a fine amounting to CARDINAL times the statutory non - taxable DATE income . If the actions of the offenders fall within the ambit of the criminal law , the bailiffs are to request their prosecution .", "Section CARDINAL of the LAW contains a list of documents on the basis of which bailiffs may proceed with forcible execution ( “ the enforcement documents ” ) . It includes , inter alia , writs of execution issued by courts , rulings and resolutions of courts in civil , commercial , administrative and criminal cases , judicial orders , and judgments of ORG . In order to initiate enforcement proceedings , the person in whose favour the judgment was delivered ( “ the creditor ” ) or a prosecutor who represented a citizen or the ORG in the court proceedings must submit to the bailiffs one of the documents specified in section CARDINAL together with a request for its enforcement ( section CARDINAL ) . The bailiffs have DATE to determine whether the request was made in compliance with the law and , if so , to start the enforcement proceedings , which must normally be completed within DATE ( sections CARDINAL ) . LAW obliges the bailiffs to suspend the enforcement proceedings in specific situations . Such suspension is compulsory if , for instance , a commercial court has started bankruptcy proceedings against the debtor and imposed a ban on payments in respect of LOC claims , or if the debtor is an enterprise included on the list of fuel and energy enterprises taking part in the procedure for recovery of debts pursuant to the LAW on measures designed to ensure the stable functioning of fuel and energy enterprises .", "Under LAW , enforcement proceedings are to be discontinued in cases where , for example , the judgment has actually been enforced in full , the time allowed for a particular type of debt collection has expired , or the enforcement document has been transferred to the debtor ’s liquidator following official recognition of the debtor ’s insolvency . The bailiffs must return the enforcement document to the creditor if , for instance , the debtor does not have property which could be seized with a view to enforcing the judgment and the measures adopted by the bailiffs in order to discover such property have proved to be unsuccessful .", "NORP Parties to enforcement proceedings or persons involved in them are entitled to challenge the bailiffs’ actions or inactivity before their superiors or courts and to claim damages ( sections CARDINAL and DATE ) .", "By the transitional provisions of the LAW , the application of sections CARDINAL and DATE was suspended in respect of enterprises included on the list of fuel and energy enterprises taking part in the procedure for recovery of debts pursuant to the LAW on measures designed to ensure the stable functioning of fuel and energy enterprises .", "Section CARDINAL of this LAW provides that damage caused by bailiffs in the course of execution of a judgment is to be compensated at the expense of the ORG in accordance with the procedure established by law .", "Under LAW , a military unit , as an entity taking part in economic activities , is legally responsible for its failure to fulfil its contractual obligations and for damage caused to the environment and to the rights and interests of natural and legal persons and the ORG . The money allocated under the relevant provisions of its budget , excluding the money allocated in respect of protected items of the budget , may be used to fulfil the unit ’s obligations . If the amount of money available is insufficient , ORG becomes responsible for the unit ’s debts . No property allocated to the unit may be used for settlement of its debts .", "At its CARDINALth session on DATE ORG , having considered the measures needed to guarantee the long - term effectiveness of the control system instituted by the Convention , recommended , inter alia , that member States", "“ review , following ORG judgments which point to structural or general deficiencies in national law or practice , the effectiveness of the existing domestic remedies and , where necessary , set up effective remedies , in order to avoid repetitive cases being brought before the ORG ... ”", "In the Appendix to the Recommendation of CARDINAL DATE , ORG noted :", "“ ... ORG is confronted with an ever - increasing number of applications . This situation jeopardises the long - term effectiveness of the system and therefore calls for a strong reaction from contracting parties . It is precisely within this context that the availability of effective domestic remedies becomes particularly important . The improvement of available domestic remedies will most probably have quantitative and qualitative effects on the workload of the ORG :", " NORP on the one hand , the volume of applications to be examined ought to be reduced : fewer applicants would feel compelled to bring the case before the ORG if the examination of their complaints before the domestic authorities was sufficiently thorough ;", " NORP on the other hand , the examination of applications by the ORG will be facilitated if an examination of the merits of cases has been carried out beforehand by a domestic authority , thanks to the improvement of domestic remedies ...", "When a judgment which points to structural or general deficiencies in national law or practice ( ‘ pilot ORG ) has been delivered and a large number of applications to the ORG concerning the same problem ( ‘ repetitive GPE ) are pending or likely to be lodged , the respondent state should ensure that potential applicants have , where appropriate , an effective remedy allowing them to apply to a competent national authority , which may also apply to current applicants . Such a rapid and effective remedy would enable them to obtain redress at national level , in line with the principle of subsidiarity of the Convention system .", "The introduction of such a domestic remedy could also significantly reduce the ORG ’s workload . While prompt execution of the pilot judgment remains essential for solving the structural problem and thus for preventing future applications on the same matter , there may exist a category of people who have already been affected by this problem prior to its resolution ...", "NORP In particular , further to a pilot judgment in which a specific structural problem has been found , CARDINAL alternative might be to adopt an ad hoc approach , whereby the state concerned would assess the appropriateness of introducing a specific remedy or widening an existing remedy by legislation or by judicial interpretation ...", "When specific remedies are set up following a pilot case , governments should speedily inform the ORG so that it can take them into account in its treatment of subsequent repetitive cases ... ”", "At the same session of CARDINAL DATE ORG adopted a resolution , by which it invited the ORG to :", "“ ... I. as far as possible , to identify , in its judgments finding a violation of the ORG , what it considers to be an underlying systemic problem and the source of this problem , in particular when it is likely to give rise to numerous applications , so as to assist states in finding the appropriate solution and ORG in supervising the execution of judgments ;", "II . to specially notify any judgment containing indications of the existence of a systemic problem and of the source of this problem not only to the state concerned and to ORG , but also to ORG , to the Secretary General of ORG and to ORG for Human Rights , and to highlight such judgments in an appropriate manner in the database of the ORG . ”", "On DATE ORG considered , pursuant to LAW , the measures adopted by ORG of GPE with a view to complying with the ORG ’s judgments concerning the issue of the prolonged non - enforcement of final domestic decisions . ORG adopted an interim resolution ( CM / ResDH(CARDINAL)CARDINAL ) , the relevant provisions of which read as follows :", "“ ORG ...", "expresses particular concern that notwithstanding a number of legislative and other important initiatives , which have been repeatedly brought to the attention of ORG , little progress has been made so far in resolving the structural problem of non - execution of domestic judicial decisions ;", "STRONGLY ENCOURAGES the NORP authorities to enhance their political commitment in order to achieve tangible results and to make it a high political priority to abide by their obligations under the ORG and by the ORG ’s judgments , to ensure full and timely execution of the domestic ORG decision ;", "CALLS UPON the NORP authorities to set up an effective national policy , coordinated at the highest governmental level , with a view to effectively implementing the package of measures announced and other measures which may be necessary to tackle the problem at issue ;", "URGES the NORP authorities to adopt as a matter of priority the draft laws that were announced before ORG , in particular the law On LAW ( on the protection of the right to pre - trial and trial proceedings and enforcement of court decisions within reasonable time ) ;", "ENCOURAGES the authorities , pending the adoption of the draft laws announced , to consider the adoption of interim measures limiting as far as possible the risk of new violations of LAW same kind , and in particular :", "- to consider the adoption of measures similar to those taken in the education sector in other sectors which raise similar problems ;", "- to take measures to ensure effective management and control over state entities and enterprises to avoid debts arising to employees ;", "- to ensure in practice the effective liability of civil servants for non - enforcement ;", "- to award compensation for delays in enforcement of domestic judicial decisions directly on the basis of the ORG ’s provisions and the ORG ’s case - law as provided by the PERSON on enforcement of judgments and the application of the case - law of ORG ;", "INVITES the NORP authorities to consider , in addition to the measures announced , appropriate solutions in the following areas :", "- to improve budgetary planning , particularly by ensuring compatibility between the budgetary laws and the state ’s payment obligations ;", "- to ensure the existence of specific mechanisms for rapid additional funding to avoid unnecessary delays in the execution of judicial decisions in case of shortfalls in the initial budgetary appropriations ; and", "- to ensure the existence of an effective procedure and funds for the execution of domestic courts’ judgements delivered against the state ... ”", "From DATE ORG resumed consideration under LAW group of the ORG ’s judgments against GPE concerning the failure to enforce , or delays in the enforcement of , domestic decisions . The following decision ( ORG Dec(CARDINAL)CARDINAL ) was adopted by ORG on that subject :", "“ The Deputies ,", "recalled that , as acknowledged by ORG in its Interim Resolution CM / ResDH(CARDINAL)CARDINAL , the non - enforcement of domestic judicial decisions constitutes a structural problem in GPE ;", "NORP noted that there are still a number of cases in which domestic court decisions remain unenforced despite the judgments of ORG ;", "NORP noted with concern that , notwithstanding the efforts made by the NORP authorities in adopting interim measures , the structural problem underlying the violations has not been solved ;", "NORP observed that failure to adopt all necessary measures , including previously announced legislative measures , has resulted in a steady increase in the number of new applications lodged with ORG concerning non - enforcement of domestic judicial decisions ;", "noted with concern in this context that priority has not been given to setting up a domestic remedy in case of non - enforcement or delayed enforcement of domestic judicial decisions , despite the ORG ’s repeated calls to this effect ;", "called upon the NORP authorities once again to take rapidly the necessary action to ensure GPE ’s compliance with its obligations under the Convention , and in particular to reconsider the various proposal for reforms made during the examination of these cases ( see , in particular , ORG / DH(CARDINAL)CARDINAL revised and ORG ) ;", "decided to resume consideration of these items at the latest at their CARDINAL meeting ( DATE ) ( DH ) , possibly in light of a draft interim resolution taking stock of the general and individual measures adopted by then and other outstanding issues if any . ”" ]

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

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

[ "P1-1-1" ]

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[ "The applicant was born in DATE and lives in GPE , GPE . She is a historian by profession and used to work as a curator in ORG .", "On DATE the applicant brought a private prosecution on charges of libel against ORG the director of ORG to ORG ( Sąd Rejonowy ) .", "On DATE the court held a conciliatory hearing . The applicant requested that ORG retract in the press her defamatory statements . The defendant refused .", "The trial began on CARDINAL DATE but the applicant failed to appear . The court discontinued the proceedings on the ground that the applicant had been duly summoned . The court considered that the applicant had been notified about the service of the summons but failed to collect it from the post office . On DATE the applicant appealed against this decision . On DATE the ORG ( PERSON ) quashed that decision and ordered that ORG proceed with the case .", "On DATE the applicant filed a complaint with ORG submitting that the length of the proceedings in her case had exceeded any reasonable time limit . On DATE the president of ORG informed her that the delay in the proceedings was caused by the presiding judge 's illness .", "On DATE the president of ORG ordered that the case be transferred to another judge .", "The next hearing was held on DATE . On that date upon the court 's order , the applicant specified the charges against S.L. Consequently , the court adjourned the hearing to consider discontinuation of the proceedings .", "On DATE the ORG discontinued the proceedings , as the offence was time - barred . The court held that the applicant submitted her private prosecution after the time - limit of DATE from the date on which she had become aware of the identity of the defendant .", "Article CARDINAL of the Criminal Code CARDINAL ( which is no longer in force and was repealed and replaced by the so - called “ New Criminal Code ” ) , as applicable at the material time , reads as follows :", "“ § CARDINAL . Anyone who imputes to another person , group of persons or institution such behaviour or characteristics , as may debase them in the public opinion or expose them to loss of the trust necessary for a certain position , occupation or type of activity , shall be liable to imprisonment not exceeding CARDINAL years , a restriction of liberty or a fine .", "§ CARDINAL . Anyone who raises or makes public untrue allegation about the behaviour or characteristics of another person , group of persons or institutions in order to debase them in the public opinion or expose them to loss of the trust necessary for a certain position , occupation or type of activity , shall be liable to imprisonment not exceeding CARDINAL years .", "...", "§ CARDINAL . The prosecution takes place under a private bill of indictment . ”" ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Agro - B , spol . s r.o . is a NORP company with its seat in ORG . It was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr PERSON , from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant company created a joint stock company “ ORG , a.s . ” which was entered in ORG on DATE . On DATE the applicant company affirmed to invest its real estate , the value of which was estimated at CZK CARDINAL,CARDINAL,CARDINAL ( ORG CARDINAL ) , as a non - cash investment in the joint stock company ’s capital . The value of its investment was divided , for the purposes of accounting , into CARDINAL parts , when CZK MONEY ( ORG CARDINAL,CARDINAL ) was booked as a registered capital ( základní kapitál ) , CZK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL ) as a guarantee fund ( rezervní fond ) and the remaining part of CZK MONEY ( ORG CARDINAL,CARDINAL ) was placed on other capital funds .", "On DATE ORG ( finanční úřad ) levied on the applicant company real estate transfer tax of CZK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) , the base of assessment being fixed at CZK CARDINAL,CARDINAL,CARDINAL ( ORG CARDINAL ) , calculated from the value of the immovable property which had not been booked as a registered capital .", "On DATE the ORG ( finanční ředitelství ) dismissed the applicant company ’s appeal on the following grounds :", "“ Under section CARDINAL(CARDINAL)(e ) investment into companies or cooperatives shall be exempted from payment of gift tax and real estate transfer tax under the relevant legal provisions , i.e. the Second Part of the Commercial Code , which does not recognise any other investment than that in the registered capital , in contrast to the book - keeping procedure ... Moreover , it is clear from section CARDINAL(CARDINAL ) of LAW concerning the management of investments made prior to the creation of a company , that only investments into the company ’s registered capital are to be considered as investments into the company ...", "Bearing in mind that LAW ] exempts from payment of tax only investments into the company , using the term of ‘ investment’ as defined in LAW , the exemption only concerns those investments which increase the company ’s registered capital . Other investments ... which do not increase the registered capital are liable to real estate transfer tax . ...", "It is to be added that e.g. the Ústí nad Labem Regional Court in its judgment no . CARDINAL Ca CARDINAL/CARDINAL - CARDINAL and ORG in its decision no . III . ÚS CARDINAL/CARDINAL affirmed that an investment ... within the meaning of section CARDINAL(CARDINAL)(e ) of LAW is an investment to the registered capital . ”", "On DATE the ORG ( krajský soud ) dismissed the applicant company ’s administrative action against the tax order finding , in particular , that since the applicant company had invested to the joint stock company the immovable property in its entirety and not its part corresponding to the joint stock company ’s registered capital , the difference between the total value of the invested property and the value of the property invested to the registered capital had constituted the base for the real estate transfer tax . Applying systematic and teleological interpretation it concluded that section CARDINAL(CARDINAL)(e ) of LAW covered only investments that increased the registered capital . The court further held that the fact that the joint stock company could not have the registered capital at its disposal - contrary to its other assets – was precisely taken into account in the tax assessment . The court found irrelevant the applicant company ’s reference to section CARDINALa of LAW that the transfer of immovable property to a joint stock company differed from the same operation involving other companies .", "In its judgment , ORG made reference to ORG judgment no . III . ÚS CARDINAL/CARDINAL of CARDINAL DATE .", "On DATE the applicant company lodged a constitutional appeal ( ústavní stížnost ) alleging a violation of NORP CARDINAL § CARDINAL , CARDINAL § DATE , CARDINAL § CARDINAL and QUANTITY Listina základních práv a svobod ) .", "On DATE ORG ( PERSON ) dismissed the appeal , endorsing the reasons on which the administrative and judicial authorities had based their decisions . It referred to ORG opinion which read , inter alia , as follows :", "“ The Director of ORG , upon ORG request , submitted that the interpretation of sections CARDINAL and CARDINAL of LAW may allow a conclusion that the term of investment means property of a partner which he or she undertakes to invest in the company ... The total of the company ’s ORG monetary and non - monetary investments constitutes the registered capital which , in terms of book - keeping , is an accounting debit . Precisely , it is the ORG real estate invested in the company , forming , after the transfer of the ownership , the registered capital , which constitutes the investment under section CARDINAL(CARDINAL)(e ) of LAW .... ORG is therefore of the opinion that the investment into the company which was exempted from payment of real estate transfer tax under LAW [ then in force ] was only the investment valuably expressed in the registered capital . ...", "ORG also referred to the ... opinion of certain courts , e.g. judgments of ORG no . CARDINAL Ca CARDINAL - CARDINAL - CARDINAL , of LOC no . CARDINAL Ca CARDINAL/CARDINAL , of ORG no . CARDINAL Ca DATE , ORG no . CARDINAL Ca CARDINAL/CARDINAL - CARDINAL which are published in LOC , or in professional bulletins ... ORG adopted a concordant opinion in its decisions no . III . ÚS CARDINAL/CARDINAL and no . II . ÚS CARDINAL/CARDINAL . According to the Ministry , the tax legislation and its interpretation is accessible to the public , clearly defined and consistent , and so foreseeable . ”", "ORG held that the imposition of tax was in conformity with the LAW as it was based on the law . It further held that having carefully reasoned their decisions , it could not be said that the fiscal authorities had applied the law arbitrarily . The court found irrelevant the applicant company ’s reference to section CARDINALa of LAW that the taxation regime applicable to joint stock companies differed from that which applied to limited liability companies .", "Under section PERSON ) real estate transfer tax is payable on the transfer of an estate carried out in return for payment .", "Section DATE provides that the real estate transfer tax base is the price established under the relevant legal provisions on DATE of the acquisition of the estate , even if the price agreed between the parties is lower than the legally established price .", "Section CARDINAL(CARDINAL)(e ) provided , inter alia , that investments into companies or ORG under a special law , i.e. the Second Part of LAW , shall be exempted from payment of gift tax and real estate transfer tax .", "Section CARDINAL(CARDINAL)(e ) provides , inter alia , that investments into the registered capital of companies or ORG under a special law , i.e. the Second Part of LAW , shall be exempted from payment of gift tax and real estate transfer tax .", "Section CARDINAL provides , inter alia , that a company ’s registered capital consists of the total of its ORG monetary and non - monetary investments in the registered capital .", "Under section CARDINAL(CARDINAL ) , a partner ’s investment in the company shall be the total sum of his or her monetary contribution and any other investment appraisable in monetary terms which the partner undertakes to invest in the company .", "Section CARDINAL(CARDINAL ) provides , inter alia , that ownership title to real estate is acquired by the company upon the recording of the ownership title in ORG on the basis of a written declaration by the party concerned , to which are appended officially authenticated signatures .", "Under section CARDINALa(CARDINAL ) the issue price of a share is the sum at which a company issued shares . The issue price can not be lower than the nominal value of a share . The second paragraph provides , inter alia , that if the issue price of a share is higher than its nominal value , the difference constitutes a share premium . Under the third paragraph , the difference between the value of non - monetary investment and the nominal value of shares which are to be issued to the shareholder as consideration , is considered as a share premium , providing that the company ’s statute , articles of association or a decision of the general meeting do not specify that that difference or part thereof is to be paid to the subscriber , or , that it is to be considered as a guarantee fund .", "The court held that if the claimant ’s investment had not been intended to increase the company ’s registered capital , it could not be considered as an investment within the meaning of section CARDINAL(CARDINAL)(e ) of LAW .", "The court held that only investments that increase a company ’s registered capital are exempt from payment of tax under section CARDINAL(CARDINAL)(e ) of LAW .", "The court stated that section CARDINAL(CARDINAL ) of LAW defines the investment of a partner as the total sum of his or her monetary contribution and any other investment appraisable in monetary terms which the partner undertakes to invest in the company . The registered capital is then defined as the total of the ORG monetary and non - monetary investments in the registered capital . Section CARDINAL(CARDINAL)(e ) of the LAW exempts from payment of gift tax investments into companies or ORG under the relevant legal provisions , i.e. the Second Part of LAW . It follows that LAW does not provide for any other investment than that into the registered capital , contrary to accounting rules . Taking into account that LAW exempts from payment of taxes only investments into a company when using the term of investment as defined by LAW , the exemption applies only to the investments which increase the company ’s registered capital .", "The court held that the terminology used by the legislator in section CARDINAL(CARDINAL)(e ) of LAW was not equivocal . The legislator used the term of non - monetary investment , which can only be exempted from payment of tax , in meaning both the investment of a partner and , at the same time , the whole substance of the investment , i.e. not only the part which constitutes the partner ’s investment but also the part which was considered as a share premium . LAW had not specified , until DATE , which of the CARDINAL meanings of the investment had to be used by section CARDINAL(CARDINAL)(e ) .", "The court found in relation to litigation prior to the change in DATE that the exemption from payment of real estate transfer tax only applied to an investment into the registered capital of a company . In that case , the real estate transfer tax will not be levied .", "The court , applying the version in force before DATE , found that the exemption from payment of real estate transfer tax only applied to investment into a company within the meaning of LAW . Only those investments which were to increase the registered capital could be exempted from payment of real estate transfer tax . Investments which did not increase the registered capital are liable to tax .", "The domestic courts held that real estate transfer tax had to be paid on investments into companies that did not form part of the registered capital ." ]

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[ "The applicant was born in DATE and lived , before his arrest , in the town of PERSON in ORG . He is serving a prison sentence of DATE having been convicted of several counts of aggravated robbery and theft committed within an organised criminal group .", "It appears from the parties’ submissions that at TIME on DATE , police officers from the interregional crime detection division of ORG arrested the applicant , together with several other individuals , including Mr T. , on suspicion of car hijacking and took them to police station no . CARDINAL in PERSON . TIME an officer on duty , PERSON , drew up an administrative offence record which , in its relevant part , read as follows :", "“ At TIME on DATE [ the applicant ] , was inebriated in a street ... in PERSON ; [ his appearance ] was an insult to human dignity and social morals .", "He committed an administrative offence under LAW ...", "[ The applicant ] , in the presence of witnesses , refused to give any explanations and to sign the administrative offence record ...", "It has been decided to levy a fine of MONEY [ on the applicant ] . ”", "After the police officers from the crime detection division had left the police station , the officer on duty called police officer PERSON who was to interrogate the applicant about the car hijacking .", "According to the applicant , during the interrogation the police officer , PERSON , and the officer on duty , PERSON , urged him to confess to the hijacking . When the applicant refused to sign a confession statement , the police officers handcuffed him , tied his legs with a rope in a crisscross manner , threw the rope over his head and tied it to his arms . The applicant was forced to remain in a very painful position for TIME . According to him , the police called that form of torture “ an envelope ” . A number of times the police officers untied and re - tied the applicant , causing him severe pain . When his resistance had worn down , the applicant asked the officers to untie him , promising to write a confession statement . The officers waited for TIME before untying the applicant . Unable to move , he had to sit on the floor for TIME , trying to regain his strength . He was too weak to write , so the police officer wrote the confession statement and told the applicant to sign it . Once he had complied , he was placed in a cell for administrative detainees .", "In TIME of DATE the applicant was taken to the office of the police investigator , PERSON . , for questioning . The applicant complained to her that he had been forced to confess to a hijacking which he had not committed . In response , PERSON . ordered an officer on duty to take the applicant back to the cell .", "The applicant was taken to another room where both officers , PERSON and PERSON , were present . They tied up the applicant in the same manner as on TIME and began beating him . They hit him several times in the head with a chair leg and kicked him a number of times in various parts of his body . During the beatings a police investigator , PERSON . , entered the room . He placed a metal beer bottle top in the applicant ’s mouth and ordered him to swallow it . When the applicant refused , PERSON . punched him in the face . Officers PERSON asked PERSON . not to leave marks on the applicant ’s face and PERSON . left the room . The beatings continued for TIME or so . Unable to bear them any longer , the applicant lost consciousness and was taken to a cell for administrative detainees . The police officers poured cold water on the applicant to “ revive ” him .", "When the applicant regained consciousness , he was taken back to the office of the police investigator , PERSON . Under PERSON . ’s influence and being afraid of further beatings , the applicant confirmed his confession statement given in TIME of DATE .", "In the meantime , the applicant ’s relatives were trying to establish his whereabouts . In TIME of DATE his wife , who had noticed his car near police station no . CARDINAL , enquired about him at the station , but the officers on duty refused to give her any information . On DATE the applicant ’s father called the station and talked to the police investigator , Ms GPE . , who , at first , refused to answer any questions and then , following a number of phone calls , told the father that the applicant had attempted to escape from the police , had run into a store , bought a bottle of alcohol and drunk it . Police officers had brought the applicant to the station because he had behaved inappropriately . PERSON . insisted that the applicant would remain at the station until he had sobered up and could answer her questions .", "The applicant ’s parents arrived at the police station and at TIME the applicant was released . When he approached his father in a corridor of the police station , he was only wearing trousers and an overcoat and was holding the rest of his clothes , which were wet , in his hands . On the way home , the applicant lost consciousness in the car and his parents took him to hospital no . CARDINAL in PERSON .", "As the Government pointed out , at TIME the applicant was examined in the hospital and diagnosed with a closed cranio - cerebral injury , concussion and multiple injuries to the head , including on its capillary surface and the left side of the parietal area , back , arms and chest . He was admitted to the surgery department of the hospital where he underwent treatment until DATE .", "The applicant submitted that his confession statement had served as a ground for instituting criminal proceedings on the charge of car hijacking . However , shortly afterwards , the criminal proceedings against him were discontinued as there was no other evidence linking him to the criminal offence in question .", "The Government , citing the statements which the applicant had made at various stages of the inquiry into his complaints of ill - treatment by the police , stated that there was no evidence that the injuries on the applicant ’s body recorded in the hospital on DATE had been caused by the police officers . They stressed that on a number of occasions the applicant had changed his statements . In their view , it was possible that he had sustained those injuries as a result of his own careless actions or in a fight which had occurred before his arrest .", "On DATE the applicant ’s parents lodged a complaint with the PERSON town prosecutor ’s office , describing in detail the events on CARDINAL and DATE and asking them to institute criminal proceedings against the police officers .", "DATE a senior assistant of the PERSON town prosecutor refused to institute criminal proceedings , finding no prima facie case of illtreatment . The senior assistant ’s decision read as follows :", "“ On DATE the parents , PERSON and PERSON , complained to the PERSON town prosecutor ’s office that their son ... had been beaten up . They stated that police officers of the PERSON town police department had arrested [ the applicant ] in TIME of DATE . Their son had not been released until after TIME on DATE , His clothes had been wet ; he had been unable to move unassisted . [ The applicant ] had lost consciousness and his parents had brought him to the admissions department of hospital no . CARDINAL in PERSON , where [ the applicant ] had been examined by a doctor on duty and admitted to the surgery department .", "[ The police investigator ] PERSON . explained that on DATE police officers of the interregional crime detection division of ORG had arrested [ the applicant ] while he had been trying to sell a stolen car ... During an interrogation [ she ] had informed him [ of his rights ] under LAW and he had agreed to give a statement in the case ; [ he ] had described the circumstances surrounding the theft of the car . PERSON . had not applied any pressure on the applicant ; he had refused legal assistance . After the interrogation [ the applicant ] had been allowed to go home ; his father had waited for him in the corridor . [ The applicant ] had not been arrested in compliance with LAW ; he had been released at TIME [ The applicant ] had not made any complaint about the actions of the police officers . He had not had any visible injuries ; she had only seen that there had been marks on [ the applicant ’s ] hands from handcuffs .", "Mr S. , a police officer of the crime detection unit of the PERSON town police department stated that at TIME on DATE , an officer on duty , PERSON , had summoned him to work because several persons who had tried to sell a stolen car had been arrested . PERSON had interrogated [ the applicant ] in his office in the police station . [ The applicant ] had described the circumstances surrounding the theft of the car ; during the interrogation [ the applicant ] had been touching his chest . When asked what had happened to him , [ the applicant ] had explained that before his arrest he had had a fight with unknown persons near the entrance to his house . [ The applicant ] had no visible injuries . Another police officer , PERSON , had entered the office a number of times . [ The applicant ] had not told PERSON whether another [ police officer ] had questioned him before Mr S.", "According to the police officer of the crime detection unit of the NORP town police department , PERSON , at TIME on DATE , police officers from the interregional crime detection division of ORG , who had arrested CARDINAL residents of PERSON , including [ the applicant ] , had arrived at police station no . CARDINAL . Mr M. had offered them his office and had left . After the police officers of the interregional crime detection division of ORG had left , PERSON had been summoned from his home because the car hijacking had been committed on territory which he supervised . [ Mr S. ] had questioned [ the applicant ] alone . PERSON had entered the office a number of times , but the atmosphere had been calm ... [ The applicant ] , while in PERSON office , said that before his arrest he had been beaten up and , apparently , he had a broken rib , but he did not mention whether he had contacted a hospital or the police in respect of that [ incident ] .", "According to an extract from the registration log of urgent medical assistance of the admissions unit of hospital no . CARDINAL in PERSON , when [ the applicant ] requested [ medical assistance ] at TIME on DATE , he had injuries ... to the head , the wrists , the back [ and ] the chest [ and he had ] painful pink bruises in the lumbar region .", "According to a statement by PERSON , who had examined [ the applicant ] in the admissions unit , [ the applicant ] had no fresh injuries or bruises .", "According to a statement by a medical assistant of the admissions unit , PERSON , [ the applicant ] had undressed in her presence and she had not seen any injuries on his body , face or hands . After [ the applicant ] had been examined by doctors , he had been admitted to the surgery department .", "The arguments laid down in the complaint of [ the applicant ’s ] parents are refuted by the materials of the investigation .", "On the basis of the above - mentioned elements , ... [ the senior assistant ] has decided to :", "Dismiss the request of [ the applicant ’s father ] for the institution of criminal proceedings concerning the beating of his son by police officers of the PERSON town police department ... ”", "The applicant appealed against the decision to a higher - ranking prosecutor .", "On DATE , on an order of the PERSON town prosecutor , a forensic medical expert examined the applicant and issued a report confirming that the latter had the following injuries : concussion , bruises on his scalp , wrists , back , chest and on the lumbar region , and abrasions on the left side of the parietal region of the head . The expert concluded that the injuries had been caused by a blunt , firm object , possibly on DATE , and had resulted in insignificant damage to the applicant ’s health .", "When he was interrogated by the town prosecutor on DATE , the applicant had provided a detailed description of the alleged ill - treatment in the police station . The description was similar to that provided in the application to the ORG .", "On DATE the PERSON town prosecutor quashed the decision of DATE , instituted criminal proceedings against the police officers and initiated an additional inquiry .", "According to the Government , on DATE the applicant asked the prosecutor ’s office to end an inquiry into his complaints about ill - treatment following the arrest , stating that he had no hard feelings against the police officers .", "On DATE a senior investigator of the PERSON town prosecutor ’s office discontinued the criminal proceedings , finding no case to be answered . The decision was based on statements by the police officers , PERSON and PERSON , and the police investigator , PERSON . , identical to those which served as the basis for the decision of DATE , and the restatement of the conclusion of the medical expert in the report of CARDINAL DATE . The senior investigator also relied on a record of the applicant ’s questioning on DATE in which the latter had denied the beatings and had stated that he had hit his head several times against a bookshelf when he had stood up from his chair at the police station . The applicant had also explained that when he had gone to the lavatory in the police station , a water tap had broken off and he had got doused with cold water . According to that interrogation record , the applicant had decided to complain about the alleged beatings in order to discredit the police officers investigating the criminal case against him .", "The senior investigator ’s decision was not served on the applicant . DATE , the applicant ’s lawyer learned about it during a phone call to the PERSON town prosecutor ’s office . On DATE , following the lawyer ’s complaint to the GPE NORP regional prosecutor ’s office , the applicant received a copy of the decision of DATE .", "On DATE a deputy prosecutor of PERSON town quashed the decision of DATE and ordered an additional investigation into the applicant ’s ill - treatment complaints .", "An expert opinion issued following another forensic medical examination performed on DATE again listed the numerous injuries to the applicant ’s head and body , and stated that those injuries had probably been sustained within TIME prior to the applicant ’s admission to hospital on DATE .", "On DATE the senior investigator of the PERSON town prosecutor ’s office again adjourned the criminal proceedings , holding that there was no criminal conduct in the police ORG actions . The decision was similar in wording to the one issued by the senior investigator on DATE , save for CARDINAL paragraphs . In the first paragraph the investigator cited statements by the QUANTITY police officers from the interregional crime detection division of ORG , who had arrested the applicant . The police officers stated that they had handcuffed the applicant , but had not applied any force . They also noted that the applicant had been in a state of drug intoxication and that he had had bruises under his nose and on his lips . The second paragraph read as follows :", "“ It appears from materials of criminal case no . DATE , which was instituted in respect of a car hijacking ... , the police officers of [ the interregional crime detection division of ORG ] had lawful grounds for arresting [ the applicant and another person ] . Moreover , as they had operative information pertaining to [ the applicant ’s and another person ’s ] characters ... the police officers ... lawfully handcuffed [ the applicant and another person ] , without overstepping the boundaries of the measures necessary to arrest persons who have committed a criminal offence . According to [ the applicant ’s ] statement , which he gave as a witness , and the statement by a witness , [ the police officer ] , PERSON , [ the applicant ] sustained the concussion , injuries to the scalp and the left side of the parietal region of the head as a result of his own carelessness , and the police officers have nothing to do with these injuries . It was impossible [ to establish ] the circumstances in which [ the applicant ] had sustained the injuries to his back , chest and the back of his head . The witnesses , [ the police officers ] Mr M. and PERSON , stated that during the interrogation [ the applicant ] had been touching his chest , explaining that he had been beaten up by unknown persons in the entrance lobby of his home . [ The applicant ] did not give any explanations as to that fact during the interrogation . Given that those injuries did not damage his health and [ the applicant ] did not request that criminal proceedings be instituted against the unknown persons , there are no grounds for institution of criminal proceedings . It appears from the above - mentioned events that the fact that [ the applicant ] had been beaten up on TIME of his arrest ... was not confirmed during the pre - trial investigation . ”", "The applicant was informed about the decision of DATE by a letter of DATE enclosing a copy of that decision . The applicant ’s lawyer appealed against the decision to a higher - ranking prosecutor .", "On DATE a deputy prosecutor of PERSON town quashed the decision of DATE and re - opened the criminal proceedings against the police officers .", "On DATE an investigator of the PERSON town prosecutor ’s office issued a decision to adjourn the criminal proceedings . The decision was identical to the one issued on DATE , save for CARDINAL paragraphs , in which the investigator restated the results of an additional medical examination of the applicant performed on DATE and cited the report of the applicant ’s questioning on DATE . It appears from the investigator ’s decision that during the questioning on DATE the applicant refuted his previous statement given to the police officers on DATE and insisted that he had been beaten up at the police station after his arrest . The applicant explained that prior to his being interviewed on DATE the police investigator , PERSON . , had threatened him with criminal prosecution and had forced him to lie that he had hit his head against a bookshelf . The expert report again listed the injuries recorded in the previous medical examinations .", "On DATE that decision was quashed by a higher - ranking prosecutor . However , DATE an investigator of the PERSON town prosecutor ’s office , by a decision identical to the one issued on DATE , closed the criminal case .", "On DATE , following a complaint submitted by the applicant ’s lawyer , the Gorodets ORG found that the decision of DATE had been unlawful because the investigator had not interrogated the applicant , his father and mother in compliance with LAW . Nor had he questioned the person with whom the applicant had been arrested , who could have specified whether the applicant had sustained the injuries prior to his arrest . ORG also noted that the investigator had not carried out other investigative measures necessary for the establishment of the truth in the case ( for example , an additional expert examination of the applicant , in view of the fact that the previous ones were contradictory ) . The court quashed the investigator ’s decision and ordered the re - opening of the criminal proceedings .", "On DATE , in a decision identical to those issued on DATE and DATE , a senior investigator closed the investigation , finding that the ORG conduct had not been illegal . That decision was annulled on DATE and a new round of criminal proceedings commenced .", "The decision of DATE was supported by the ruling of the Gorodets ORG , which on DATE examined the complaint lodged by the applicant ’s lawyer and held that the decision of CARDINAL DATE had been unlawful because the senior investigator had failed to comply with ORG orders laid down in the decision of DATE . ORG reiterated its findings of DATE and also noted that the prosecuting authorities had not interrogated a Mr So . , who could have been “ an eyewitness in the case ” . It further pointed out that the investigating authorities had not resolved the discrepancies between the police ORG statements pertaining to the applicant ’s injuries prior to the arrest and the medical expert reports , which had not recorded those injuries . ORG stressed that the officers had given conflicting statements , changing their description of the events as the criminal case had progressed .", "On DATE and DATE the criminal proceedings against the police officers were discontinued , with the finding that there was no case of ill - treatment . Both decisions were quashed by higher - ranking prosecutors on DATE and DATE , respectively , and the criminal proceedings were re - opened . The decision of CARDINAL DATE mentioned an experiment during which the investigators attempted to verify whether the applicant could have sustained the head trauma by hitting his head against a bookshelf . It appears that such a possibility was not excluded if the applicant had stayed in a very specific position and had hit his head a number of times .", "On DATE the senior investigator of the PERSON town prosecutor ’s office closed the criminal case , finding that the injuries to the applicant ’s head had resulted from his own careless actions ( namely , hitting his head several times against a bookshelf ) and that the remaining injuries had been caused by unknown individuals before the applicant ’s arrest . The decision was based on statements by the police officers , who had denied any involvement in the alleged beatings , the results of the medical examinations and the applicant ’s statements which the investigator considered to be contradictory and manifestly ill - founded .", "According to the applicant , the decision of DATE was annulled on DATE . However , in DATE the investigation was again closed . Despite numerous requests from the applicant , copies of those decisions were not served on him . Without providing the ORG with a copy of the decision , the ORG submitted that the final decision in the course of the inquiry into the applicant ’s ill - treatment complaints had been issued by a senior investigator of the PERSON town prosecutor ’s office on DATE . The senior investigator had not found any evidence in support of the applicant ’s allegations .", "On DATE , without reopening the inquiry into the incident on CARDINAL and DATE , a commission comprising CARDINAL high - ranking prosecutors from the GPE NORP regional prosecutor ’s office examined the materials of the inquiry . Having read the statements that the applicant had given during various stages of the inquiry , the statements by the police officers and investigators implicated in the events and the results of the medical expert examinations , the commission confirmed that the decision to close the inquiry had been reasonable . In addition , the commission cited statements by the applicant ’s co - defendant , Mr T. , who had allegedly told the investigators that the applicant had acknowledged an attempt to frame the police officers by complaining of ill - treatment . According to PERSON , the applicant had told him that he had hit his head against a bookshelf a number of times during the interrogation , and had broken a tap in a lavatory in the police station and had poured water on his clothes . The commission concluded that the applicant ’s head injury had resulted from his own careless actions and that his statements about the beatings should be treated with caution as they had been merely revenge for his arrest and the subsequent institution of criminal proceedings against him . The commission also noted that it had been impossible to establish the cause of the bruises on his back and chest . They also relied on statements by the police officers , who had allegedly observed the applicant touching his chest during the interrogation after his arrest and who had reiterated the applicant ’s explanations that he had been beaten up by unknown persons in the entrance lobby of his home .", "At TIME on DATE , police officers of the LOC traffic police stopped the applicant ’s car and searched it . They discovered a television set , a claw hammer and CARDINAL balaclava masks . Suspecting that the television set could have been stolen , the officers decided to arrest the applicant and his CARDINAL passengers , Mr T. and PERSON According to the ORG , the applicant refused to proceed to the police station and verbally insulted the officers . Following an altercation with the applicant during which he had used force , had physically resisted the ORG order to get into a police car and had hurled himself against the car , officers PERSON . and PERSON . forced him into the car and took him to the LOC police station .", "A senior inspector of the LOC traffic police drew up an administrative offence report . The report issued on DATE stated that the applicant had committed a disorderly act : he had used offensive language , had cursed passers - by , had not responded to reprimands and had acted provocatively . The applicant signed the report , noting that he did not agree with it . CARDINAL police officers , acting as witnesses , also signed the report .", "According to the applicant , in the police station he was placed in office no . CARDINAL where QUANTITY police officers were present . The officers handcuffed him to a metal safe and began hitting and kicking him . The officers urged the applicant to confess to the theft of the television set . The beatings continued for TIME .", "On DATE , the chief of the PERSON town police department examined the administrative offence report and decided to levy a fine of RUB MONEY on the applicant . The examination record states that the applicant was transferred to the temporary detention unit of the police station at TIME", "The applicant submitted that at TIME on DATE , he had again been taken to office no . CARDINAL in the police station . A police officer ordered him to sit on a metal chair near a safe and handcuffed him to the safe . Another police officer placed a gas mask over the applicant ’s head . A number of times the officer squeezed the inlet pipe of the gas mask , completely cutting off the air supply so that the applicant could not breathe . According to the applicant , that method of torture continued for TIME . Almost suffocating , the applicant tore off the handcuffs . The officers put him on the floor and placed another pair of handcuffs , bearing the sign “ Kostya ” , on him . While CARDINAL police officer sat on the applicant ’s back , another held his legs and a third officer again started squeezing the pipe of the gas mask . Then they connected wires to the applicant ’s fingers . The applicant heard the sound of someone turning a phone handle and felt an electric shock . The officers applied electric shocks to him and at the same time continued to cut off the air supply in his gas mask . A number of times during the torture , the applicant lost consciousness . He also suffered involuntary defecation . When the police officers had grew tired , they placed him back on the chair and again handcuffed him to the safe . He spent the rest of DATE in that position and was taken back to his cell in the evening .", "On DATE a police investigator of the ORG town police department drew up a record stating that the applicant had been arrested at TIME on DATE on suspicion of having stolen the television set on DATE .", "On DATE the applicant had a meeting with a lawyer , who asked for the applicant to be medically examined . In response to the request , on DATE a police investigator issued a letter of referral addressed to ORG of ORG . According to the applicant , on DATE a medical expert examined him and DATE issued a report , the relevant part of which read as follows :", "“ According to the letter of referral , [ the applicant ] was allegedly beaten up by police officers in an attempt to extract a confession from him .", "OBJECTIVELY : on the external surface of the lower right forearm there is a bruise which has an irregular oval form , measures QUANTITY in width and QUANTITY in length and is covered by a brownish crust ... There is a similar injury measuring QUANTITY in width and QUANTITY in length on the inside of the same forearm ; [ there are ] CARDINAL [ injuries ] measuring QUANTITY in width and QUANTITY in length on the inside of the left forearm ; [ there is a bruise ] measuring QUANTITY in width and QUANTITY in length on the right cheekbone ; [ there is an injury ] measuring QUANTITY in width and QUANTITY in length on the right shoulder [ and there is a bruise ] measuring QUANTITY in width and QUANTITY in length on the left shoulder . In the lumbar region there is a bruise which has an irregular oval form , measures QUANTITY in width and QUANTITY in length and is light blue in colour . There is a similar bruise , measuring QUANTITY in width and QUANTITY in length in the middle of the lower spine . There is another similar bruise measuring QUANTITY in width and QUANTITY in length on the chin .", "CONCLUSIONS :", "[ The applicant ’s ] injuries on the chin , right and left forearms , right and left shoulders , right cheekbone , bruises on the chest [ and ] the right side of the lower spine were caused by a firm blunt object . Those injuries did not cause health damage . The injuries were sustained DATE before the examination . ”", "The report indicated that the examination was performed on the basis of the police investigator ’s decision of DATE . It also stated that the examination commenced and ended on DATE , on DATE . The expert signed the report on DATE .", "On DATE the applicant ’s lawyer lodged a complaint with the PERSON town prosecutor , seeking the institution of criminal proceedings against the police officers .", "DATE . On DATE an assistant to the PERSON town prosecutor refused to institute criminal proceedings , noting that the applicant had written a note withdrawing his complaint against the police officers and explaining that he had received the injuries before his arrest .", "According to the applicant , he wrote that note while he was still at the hands of the alleged perpetrators of the offence against him , that is , while he was being held in the temporary detention unit at the police station . He insisted that the police officers had forced him to write the note and that the assistant prosecutor had never talked to him in person .", "On DATE , following a complaint lodged by the applicant ’s lawyer with the ORG NORP regional prosecutor , the PERSON town prosecutor quashed the decision of CARDINAL DATE and initiated an additional inquiry into the applicant ’s ill - treatment complaints .", "DATE , the PERSON town prosecutor closed the inquiry , finding that there was no case to be answered . Without indicating the evidence on which his findings were based , the prosecutor noted that the fact that the police officers had used physical force against the applicant had not been confirmed .", "On DATE the PERSON town prosecutor annulled his previous decision , finding that the inquiry had been incomplete .", "On DATE and CARDINAL DATE a deputy prosecutor of LAW town refused to institute criminal proceedings against the police officers , holding that there was no prima facie case of ill - treatment . Both decisions were quashed by the town prosecutor on DATE and DATE , respectively .", "On DATE a deputy prosecutor of ORG town issued a decision dismissing the applicant ’s ill - treatment complaints . The relevant part of the decision read as follows :", "“ In the course of the investigation it was established that from DATE [ the applicant ] was detained in the temporary detention unit of the ... police station on the basis of an administrative offence record ... which had been drawn up by the senior inspector of the NORP district traffic police , PERSON . , under LAW , [ that is ] “ a minor disorderly act ” . On DATE [ the applicant ] was fined RUB CARDINAL in accordance with the decision of the deputy chief of the ORG town police department , PERSON On DATE a police investigator of the ORG town police department , PERSON , arrested [ the applicant ] as a suspect in compliance with LAW .", "The deputy chief of the LAW town police department , PERSON , in relation to the fact of [ the applicant ’s ] arrest and his placement in the temporary detention unit ... , explained that ... he had fined [ the applicant ] for a minor disorderly act on DATE and not on DATE as it was indicated in the record of the administrative offence . The date of DATE was indicated incorrectly . On DATE the materials in the case of the administrative offence [ committed by the applicant ] were not sent to a court because it was no longer necessary . He was arrested on DATE by the investigator , PERSON , by virtue of LAW .", "Thus , there is no criminal conduct ... in the actions of the deputy chief of the LAW town police department , PERSON", "Earlier , in the course of the inquiry into [ the applicant ’s ] complaint , [ the applicant ] was questioned [ and he ] explained that at TIME on DATE , he had been arrested by the police officers of the LOC traffic police on suspicion [ that he had ] stolen a television set . [ He ] was taken to an office on the second floor of the ... police station where CARDINAL police officers were present . [ The applicant ] stated that during an interrogation the police officers had applied physical force to him : [ they ] had handcuffed him to a safe , [ they ] had punched him in various parts of his body , [ they ] had put a gas mask on him and had cut off [ the air supply in ] the inlet pipe . Subsequently , he was taken to the temporary detention unit of the LAW town police station . At TIME on DATE , he was taken to the same office , where the same police officers continued a discussion with him , during which they used physical force against him .", "In the course of the check of [ the applicant ’s ] statement , a police officer of the crime detection unit of the LAW town police department , PERSON , was also questioned ; [ he ] explained that on DATE [ the traffic police ] had arrested [ the applicant ] on suspicion of theft . Subsequently he was taken from the duty unit of the ... police station to office no . CARDINAL ... where PERSON talked to him . PERSON stated that during the talk [ the applicant ] had acted provocatively , had used offensive language towards the police officers and had suddenly thrown himself on [ Mr L. ] . PERSON thought that [ the applicant ] wanted to take possession of his service gun . In this connection , PERSON , in compliance with section DATE of LAW , had handcuffed [ the applicant ] to the safe to restrict his actions . Mr PERSON stated that during the talk with [ the applicant ] he had noticed abrasions on his chin . Mr L. could not explain the origin of those injuries . He had not talked to [ the applicant ] on CARDINAL and DATE because he had taken DATE off . Moreover , PERSON noted that police officers of the crime detection unit of the PERSON town police department , PERSON . , PERSON . , PERSON , PERSON . , and PERSON , had been in the office during the questioning of [ the applicant ] ; [ they ] had not taken part [ in the talk ] , [ they ] had performed their work and had not used physical and moral pressure against [ the applicant ] .", "Police officer ... PERSON . stated that on DATE PERSON had talked to [ the applicant ] in office no . CARDINAL of the police station . He did not take part in the talk [ and ] carried on with his work . However , during the talk with PERSON he heard [ the applicant ] use offensive language against the police officers a number of times . PERSON explained that at the moment when [ the applicant ] had attacked PERSON , he had paid attention to him and had noticed abrasions on his face . When PERSON handcuffed [ the applicant ] to the safe , he had continued with his work . He did not talk to [ the applicant ] on DATE and DATE because he took those DATE off .", "In the course of the additional inquiry , police officers ... , PERSON , PERSON . and PERSON PERSON were questioned ; [ they ] explained that on DATE they had been in office no . CARDINAL of the police station , to which [ the applicant ] had been brought for a talk . However , they were unable to recollect who had talked to him owing to the remoteness of the events . [ They ] also could not recollect whether [ the applicant ] had had any injuries on his face or other parts of his body .", "Moreover , police officers ... PERSON and PERSON . explained that on DATE and DATE they had not talked to [ the applicant ] , because they had had DATE off . Police officer PERSON explained that on DATE he had been on the reserve list , and on DATE he had had a day off . However , he had not talked to [ the applicant ] on CARDINAL and DATE .", "It was impossible to question police officer ... PERSON . in the course of the additional investigation because since DATE he has been serving in ORG of GPE .", "According to the report of [ the applicant ’s ] forensic medical examination [ issued ] on DATE , [ the applicant ] had the following injuries : abrasions on the chin , right and left shoulders , right and left forearms , right cheek , bruises on the chest and the right side of the lower spine . The injuries were caused DATE before the examination . Thus , according to the report of the forensic medical examination [ the applicant ] could have sustained the injuries on CARDINAL , DATE , CARDINAL or DATE .", "In the course of the examination of [ the applicant ’s ] complaint , the police officers of the LOC traffic police ... , an inspector ... , Mr PERSON . , and the senior inspector , PERSON . , were questioned .", "During the questioning PERSON . stated that on DATE he , together with the senior inspector of the traffic police , PERSON . , had been supervising the traffic . They had received an order from an officer on duty ... to stop a white car .... At TIME ..... near a railway crossing they stopped a similar car [ intending ] to check the documents . There were CARDINAL persons in the car ; [ the applicant ] , CARDINAL of the persons in the car , started using offensive language towards the traffic police officers ; [ he ] resisted being placed in a police patrol car . It was apparent that [ the applicant ] did not want to get into the patrol car , resting his hands against the car door and roof . That is why Mr PERSON . grabbed [ the applicant ] by one hand and PERSON . by the other and they twisted [ his hands ] behind his back . However , [ the applicant ] continued his resistance , turning from side to side in his struggle to break loose . At the same time he was bumping against various parts of the car ( a door , the car body ) with his shoulders and other parts of his body . Then PERSON . and PERSON . pushed [ the applicant ] into the patrol car . PERSON . gave a similar statement in respect of those events . Moreover , PERSON PERSON . and PERSON . explained that [ the applicant ] had had abrasions on the chin . Subsequently , the arrestees were taken for further inquiry to the PERSON town police station , where PERSON . drew up an administrative offence record in respect of [ the applicant ] under LAW .", "In the course of the additional investigation an expert of ORG of ORG , PERSON . , was questioned as to whether the injuries on the [ applicant ’s ] arms , chest and lower spine could have been caused when he had been placed in and taken out of the car while [ he ] had been bumping against protruding parts of the car door and body . In response to that question , PERSON . stated that those injuries had been caused by a blunt firm object and they could have been caused when [ he ] had bumped against protruding parts of the car door and body when [ he ] had been placed in and taken out of the car .", "Thus , the orders of the LAW town prosecutor , PERSON , were complied with fully .", "However , [ the applicant ’s ] allegations that the police officers of the LAW town police department used physical force against him are not corroborated by any material evidence . ”", "The applicant ’s lawyer appealed against the decision to the Balakhny Town Court , complaining that it was unlawful and manifestly ill - founded .", "On DATE the ORG accepted the complaint , quashed the decision and ordered an additional investigation into the applicant ’s allegations of ill - treatment . In particular , ORG noted that there were eyewitnesses of the applicant ’s arrest who could have testified as to whether the applicant had resisted arrest , had used offensive language , and so on . ORG also found that there were a number of discrepancies in the materials submitted by the prosecution . It ordered the relevant authorities to resolve them .", "On DATE the deputy prosecutor of ORG town again dismissed the request for the institution of criminal proceedings against the police officers . The deputy prosecutor copied the complete text of the decision of CARDINAL March CARDINAL , and added CARDINAL more paragraphs in which he noted that a record of the crime scene examination and extracts from registration logs had been enclosed in the case file .", "That decision was annulled by a higher - ranking prosecutor . However , on DATE the deputy prosecutor of PERSON town issued another decision refusing to institute criminal proceedings . That decision was identical to those issued on DATE and DATE , save for CARDINAL paragraph in which the deputy prosecutor drew attention to the statements by PERSON , QUANTITY eyewitnesses of the applicant ’s arrest on DATE . Both witnesses testified that the applicant had had no visible injuries prior to his arrest and that he had not complained about the state of his health . He had not resisted the arrest or his placement in the patrol car , and the police officers had not used force during the arrest .", "According to the applicant , the decision of DATE was not served on him and he learned about it in DATE during a phone call to the ORG town prosecutor ’s office . In DATE he lodged a complaint with the GPE NORP regional prosecutor ’s office about the ineffectiveness of the investigation . By a letter of CARDINAL DATE he was informed that on DATE a deputy prosecutor of ORG had instituted criminal proceedings against the police officers .", "On DATE an investigator interviewed the applicant in the correctional colony where he was serving his sentence at the time ( see paragraph CARDINAL above ) about the circumstances surrounding his arrest on DATE and his complaints of ill - treatment by the police . The applicant refuted his previous statements , insisting that he had fallen down the stairs in the detention unit of the police station . He stressed that the police officers had not used force against him and that he had no intention of pursuing the complaint against them .", "DATE , on DATE an investigator of the PERSON town prosecutor ’s office closed the criminal proceedings against the police officers , finding no criminal conduct in their actions . Neither the applicant nor his lawyer was notified of the decision . The lawyer learned about the decision in DATE . He immediately lodged a motion with the PERSON town prosecutor ’s office , asking for permission to study the case file . The request was dismissed . The lawyer repeated his request without success and appealed against the refusal to the Balakhny Town Court , providing the court with copies of the prosecutor ’s refusals and the power of attorney issued by the applicant and confirmed by ORG on DATE .", "On DATE ORG confirmed that the refusal had been lawful as the lawyer had not presented any document authorising him to act on the applicant ’s behalf . That decision was quashed on appeal on DATE by ORG and a reexamination of the matter was ordered .", "On DATE ORG ruled that the refusal to provide the applicant ’s lawyer with access to the case file had been unlawful .", "On the basis of ORG decision , the applicant ’s lawyer was given access to the file and was able to make copies of documents , including the decision of CARDINAL DATE . The investigator , having exclusively relied on statements by the police officers who had come into contact with the applicant DATE , had found that there was no evidence of ill - treatment and that the applicant had sustained the injuries in resisting arrest .", "Responding to an appeal lodged by the applicant ’s lawyer against the decision of CARDINAL DATE , ORG upheld that decision , finding it to be lawful and reasonable . ORG noted that the investigators had collected evidence in support of their version that the applicant had sustained the injuries in his attempt to resist arrest . It also drew attention to the applicant ’s statements made in DATE when he had provided another cause for his injuries .", "On DATE the applicant was transferred to detention facility no . IZ-CARDINAL/CARDINAL in GPE . On CARDINAL , DATE and DATE and CARDINAL and DATE he was taken from facility no . IZ-CARDINAL/CARDINAL to a temporary detention ward in LOC of PERSON , where police officers interrogated him . The applicant alleged that the officers had used force against him following his refusals to answer their questions . On DATE the applicant complained to the ORG NORP regional prosecutor of ill - treatment in DATE and DATE . On DATE the PERSON town prosecutor refused to carry out an inquiry into the applicant ’s complaints , reasoning that the PERSON town prosecutor ’s office had no competence to examine it .", "DATE . On DATE CARDINAL police officers took the applicant from his cell in detention facility no . IZ-CARDINAL/CARDINAL to an investigation ward . They allegedly ordered the applicant to confess to a robbery , threatening that they would dress him in a police uniform and place him in a cell with “ hardcore criminals ” . The officers also repeatedly threw the applicant ’s hat in a dustbin and then forced him to take the hat out of the dustbin and put it on his head ." ]

[ "3" ]

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[ "ORG The applicants are property owners who complain of the reduction of rent due to them under tenancy agreements by operation of the DATE LAW ( Mietrechtsgesetz ) .", "ORG The applicants jointly own a building in GPE comprising several apartments leased to tenants .", "CARDINAL of these apartments , consisting of CARDINAL rooms and a kitchen ( with a total surface area of CARDINAL ) , was let on DATE under a freely negotiated lease in accordance with the provisions of the DATE LAW , as amended in DATE , at a rent of ORG ( NORP schillings ) CARDINAL per month .", "ORG Pursuant to GPE , the tenant of the above apartment applied on DATE to ORG ( PERSON ) for a reduction of his rent to ORG CARDINAL per month , that is PERCENT of the maximum basic rent for class D apartments , as from DATE . After holding a hearing on CARDINAL DATE , ORG allowed the application on DATE .", "ORG The applicants appealed against this decision to ORG ( LOC für GPE ) of GPE . Their tenant claimed that the apartment was in class D because , when he had rented it , there had been no running water or lavatory ; these facilities were subsequently installed at the tenant ’s expense .", "On DATE the PERSON court confirmed that the apartment was in class D and that under section PERSON ) of the DATE LAW the DATE rent might not therefore exceed the amount of ORG CARDINAL per square metre . Under section CARDINAL(CARDINAL ) , the rent had to be reduced to PERCENT of the statutory amount , which resulted in a rent of ORG DATE in this case . The overcharge as from DATE ( ORG CARDINAL ) was ordered to be repaid to the tenant .", "ORG The applicants appealed , claiming in particular that the restrictions resulting from the application of LAW were unconstitutional . The reduction of a freely and lawfully negotiated rent in fact amounted to an expropriation of the landlord ’s property without compensation . For these reasons , the applicants suggested that the appellate court refer the question of the constitutionality of the relevant legislation to ORG ) .", "ORG ( PERSON für GPE ) of PERSON rejected the appeal on DATE . It did not consider it necessary to submit the matter to ORG having regard to ORG case - law on similar issues .", "ORG The applicants are members of the same family and reside in GPE .", "They jointly own a building in GPE . CARDINAL of the apartments in this house , having a total surface area of QUANTITY and consisting of CARDINAL rooms and a kitchen , plus lavatory and water facilities accessible by a corridor outside the apartment , was let on DATE under a freely negotiated lease in accordance with the provisions of the CARDINAL Rent Act , as amended in DATE .", "ORG The rent was set at ORG CARDINAL per month until DATE , and at ORG DATE as from DATE , regard being had to certain improvements to be made by the tenants ( including in particular the transfer of the water installations to the apartment itself ) . The rent was furthermore subject to an indexing provision on the basis of the consumer - price index for DATE . As from DATE , the rent would therefore have been ORG DATE . In fact , the tenants actually paid ATS DATE as from DATE .", "ORG On DATE , pursuant to the CARDINAL Rent Act , the tenants of the above apartment applied to ORG to reduce the rent to PERCENT of the maximum basic rent for class D apartments . ORG granted the application on DATE .", "ORG The applicants appealed to ORG . They argued that , although certain improvements had not been financed by themselves but by the tenants , those improvements had in fact been agreed in the original lease and had been reflected in a reduction of the rent for the initial period . The tenants objected that the costs of their investments had by far exceeded the amount by which the rent had temporarily been reduced .", "The court decided on DATE that the chargeable rent should be based on that for class D apartments because the apartment in question had been in this class when the lease was concluded and the improvements had not been carried out by the landlords . It accordingly reduced the rent to ORG DATE as from DATE . At the same time , it ordered the applicants to pay back to the tenants the overpayments received since that time ( amounting to some ORG CARDINAL,CARDINAL ) .", "ORG The applicants appealed against this decision , claiming that the rent should be based on that for class B apartments and not for class D and that they had suffered expropriation or other disproportionate interference with their property rights as guaranteed under LAW ) and LAW No . CARDINAL ( PCARDINAL - CARDINAL ) to the Convention . They submitted that the question of constitutionality should be referred to ORG .", "ORG of Innsbruck , although it allowed the appeal in part by a decision of CARDINAL DATE , confirmed the classification of the apartment in class D , regard being had to its standard at the time of the conclusion of the lease . The court entertained no doubt with regard to the constitutionality of the applicable legislation . LAW provided for a measure of deprivation which was in conformity with the requirements of the LAW and of the LAW . The public interest served by this legislation was securing the stable , socially and economically justified housing rents for apartments which as a rule served the important needs of those broad sections of the population who depended on leased accommodation .", "ORG On DATE the applicants applied to ORG for compensation from the ORG for expropriation , in the amount of ORG CARDINAL ( in regard to the CARDINAL-month period DATE ) . The application was rejected on DATE and the applicants did not appeal in time against this decision . Their subsequent application to be granted leave to appeal out of time was finally rejected by ORG on DATE .", "ORG The applicants also lodged an appeal against ORG decision of CARDINAL DATE based on the unconstitutionality of the applicable legislation . On DATE ORG ( Oberster Gerichtshof ) rejected this appeal as inadmissible .", "ORG The first applicant is the owner , and the late PERSON , whose successors in title have pursued the application , was the usufructuary , of a house in GPE comprising several apartments leased to tenants . Other premises in the house are let for non - residential purposes .", "One of the apartments , consisting of CARDINAL rooms , a kitchen , a corridor , a bathroom and a lavatory ( total surface CARDINAL ) , was let on DATE under a freely negotiated lease in accordance with the provisions of the CARDINAL Rent Act , as amended in DATE . The rent was set at ORG DATE , subject to an indexing provision on the basis of the consumer price index for DATE . The rent had risen to ORG DATE by DATE .", "Pursuant to the DATE LAW , the tenant of the above apartment asked on DATE for a reduction of his rent to ORG DATE ( that is PERCENT of the maximum basic rent for class C apartments ) as from DATE . The ORG lawyer replied on DATE that the request was unjustified .", "ORG On DATE the tenant applied to ORG for the rent to be reduced to ORG DATE as from DATE . After holding a hearing on DATE , ORG decided on CARDINAL DATE to allow the application .", "ORG The applicants appealed to ORG ( Bezirksgericht Innere PERSON ) . They submitted that the apartment was in class B for the purposes of section CARDINAL of the DATE LAW and also that the house was situated in a zone for the protection of monuments to which section CARDINAL of the LAW applied .", "The court decided on DATE to reduce the rent to ORG DATE as from DATE . It held that the apartment had been in class C at the date of the conclusion of the lease , and that section CARDINAL was inapplicable because the house was not situated in a zone of historical or architectural interest . It was true that the applicants had made considerable investments ( in the total amount of ORG CARDINAL ) , but this did not affect the legal position .", "ORG The applicants appealed against this decision , alleging in particular that the apartment had been wrongly classified in class C , and that section CARDINAL(CARDINAL)CARDINAL of the DATE LAW was applicable .", "ORG of GPE rejected the appeal on DATE . It considered that the court of first instance , on the evidence , had rightly concluded that neither section CARDINAL(CARDINAL)CARDINAL nor section CARDINAL(CARDINAL)CARDINAL of the DATE LAW was applicable . In particular it had not been proven that the investments made by the applicants had been financed from other resources than their rent income which they were legally obliged to use for maintenance purposes . It had therefore not been shown that they had borne a considerable financial risk of their own . In these circumstances the legal conditions for reducing the rent were fully satisfied .", "ORG A system of rent control has existed in GPE since World War I. The CARDINAL Rent Act ( PERSON ) which , subject to numerous amendments , remained in force until DATE , provided for the freezing of rents at the DATE level ( section CARDINAL ) . The landlord was entitled to levy extra charges in respect of current costs of administration , taxes , and special equipment ( GPE , sections CARDINAL and CARDINAL ) . On the conclusion of a new lease he could ask for an increase not exceeding a maximum amount laid down in the law ( Neuvermietungszuschlag , section CARDINAL of the DATE version ) .", "The landlord was obliged to use the income from rent for the normal maintenance costs of the building but he was not required to carry out any improvements ( section CARDINAL ) , which , however , could be undertaken with the agreement of the tenants concerned subject to a supplement to the rent to be paid by them ( section CARDINAL , first sentence ) . If the necessary maintenance costs were not covered by the rental income of DATE , the landlord could ask for an increase in the amount of rent ( erhöhter ORG ) to be fixed by the court for a period not exceeding ten years . In that case the landlord was required to use the entire additional rental income during that period for the necessary maintenance measures ( section CARDINAL ) .", "ORG The DATE LAW further provided for a considerable number of restrictions on the landlord ’s right to terminate a lease ( sections DATE ) . In principle , leases could be terminated only for important reasons ( section CARDINAL(CARDINAL ) ) . The Act specified what was to be regarded as an important reason ( section CARDINAL(CARDINAL ) ) and in practice the grounds upon which a lease could be terminated were interpreted in a restrictive manner . The lease did not terminate when the tenant died . The Act provided for a right of succession ( Eintrittsrecht ) of near relatives ( spouse , children and adoptive children , brothers and sisters ) and other persons who had lived in the household of the tenant ( section CARDINAL(CARDINAL)CARDINAL ) . When the landlord or near relatives wished to use the apartment in question the contract could only be terminated if there existed an \" urgent need \" ( which in practice was interpreted as meaning a \" genuine emergency \" ) , and if adequate alternative accommodation was made available to the tenant ( section CARDINAL(CARDINAL)CARDINAL ) .", "However , the above restrictions , in particular the restrictions on the claimable amount of rent , were not of general application . No rent restrictions applied to apartments in buildings constructed after DATE or to certain other apartments including apartments built after the entry into force of the CARDINAL LAW ( section CARDINAL ) . A split housing market was therefore created which privileged the owners of newly constructed houses or apartments whose rents were subject only to the general provisions of LAW ( ORG ) concerning the law of contracts .", "Under the NORP rule in GPE a rent - freeze was introduced also in respect of certain tenancy agreements which did not come within the scope of the CARDINAL LAW ( Mietzinsregelungsverordnung ) . This freeze was maintained by NORP legislation introduced in DATE ( PERSON ) . In respect of leases in force on DATE the freely negotiated rent resulting from an earlier agreement could no longer be increased unless this was authorised by a judicial decision taken by analogous application of the relevant provisions of the DATE LAW concerning rent increases . However , no restrictions applied to new agreements in respect of apartments which did not come within the scope of the DATE LAW , i.e. principally apartments in new houses .", "ORG In DATE , an amendment to GPE ( ORG ) brought about an extensive relaxation of controls in respect of apartments which came within the scope of this LAW . As from DATE rent restrictions were continued only for earlier leases which remained in force , including leases continued on the basis of the right of succession of a person other than the original tenant . Here the rent freeze continued to operate on the basis of the conversion of each Crown of the DATE rent into ORG CARDINAL for apartments and into ORG ( ATS CARDINAL as from DATE ) for business LOC . However , the parties could fix a higher rent by agreement once the lease had lasted DATE . New leases were no longer subjected to any restrictions on the amount of rent even in respect of apartments which had previously been subject to rent control , provided that these apartments were re - let within DATE of the entry into force of the new legislation , or DATE after vacation by the previous tenant ( section DATE ) , new version ) . The landlord was obliged to use CARDINAL of his additional rent income for maintenance purposes ( section CARDINAL(CARDINAL ) ) .", "The easing of rent controls led to relatively high rents even for newly let apartments in old houses . The continued rent - freeze in relation to existing leases encouraged a tendency towards the perpetuation of old leases , and a corresponding scarcity of vacant apartments in this category which had repercussions on the free market for new leases . The relatively high rents which could be obtained for newly let apartments in old houses were further boosted by the existence of high rents in the market for newly constructed apartments , which were exempted from the system of rent controls even before DATE . In DATE a landlord could obtain on the free market up to CARDINAL times the rent frozen at the DATE level .", "ORG The unfavourable trend in the housing market led to the re - introduction of rent controls for substandard apartments in DATE . By a further amendment to LAW Mietengesetznovelle ) , fresh restrictions were introduced for new leases of such apartments . While the existing leases in respect of these apartments remained unaffected ( even if they were based on a free agreement concluded after DATE ) , new leases could be concluded as from DATE only on the basis of a statutory square metre rent of ORG DATE ( section CARDINAL(CARDINAL ) of LAW as amended in DATE ) . As this amount was regarded as insufficient by many landlords , they preferred to leave vacant apartments in this category unoccupied , a fact which put an additional strain on the housing market and tended to lead to higher rents for the remaining categories of apartments .", "Apart from the above rent control provisions which affected mainly apartments in houses constructed before World War I , the legislation prior to DATE also included rent control provisions applicable to certain houses constructed at DATE , in particular houses constructed with public subsidies ( DATE ) or by non - profit - making housing associations ( GPE DATE ) . This legislation contained detailed regulations on the calculation of rents which were based on the principle that they should not exceed the costs incurred by the owner . It has not been affected by the DATE LAW .", "ORG The DATE LAW has been repealed and replaced by a new LAW , which entered into force on DATE . It was intended to bring about an overall reform of the law governing the relationship between landlords and tenants .", "However , like LAW , LAW does not apply to all leases . LAW ) exempts ( i ) premises let to certain types of enterprises , ( ii ) LOC let as tied accommodation , ( iii ) premises let for DATE and ( iv ) premises let as secondary residences or for leisure purposes . Section CARDINAL(CARDINAL ) excludes the application of the rent control provisions to buildings constructed and owned by non - profit - making housing associations , which in this respect are subject to the special rent control provisions of ORG , see paragraph CARDINAL above ) . Finally , section CARDINAL(CARDINAL ) stipulates that only certain provisions ( concerning the termination of leases , the right of succession to leases and maintenance contributions ) are to apply to ( i ) buildings constructed without public subsidies after DATE , ( ii ) houses with not CARDINAL separate apartments and ( iii ) freehold flats ( ORG ) in buildings constructed DATE . In these cases the amount of rent can be freely agreed without any restrictions .", "As regards apartments and LOC which come within the scope of the LAW , there has been a fundamental change concerning the system of rent control . Further important modifications of the earlier legislation concern the landlord ’s obligations as to the maintenance of his property . The provisions on termination of leases have in substance been maintained subject to certain minor amendments .", "CARDINAL .", "\" Rent under the head lease ( ORG )", "( CARDINAL ) The rent payable by the tenant under the head lease in respect of the rented premises shall comprise :", "the basic rent ( ORG ) ;", "the proportion of the running costs attaching to the rented LOC and the recurrent public charges payable on the LOC ;", "the proportion of the relevant exceptional expenses attaching to the rented LOC ;", "an appropriate amount for furniture rented with the property or other services provided by the landlord in addition to making the rented property available for use .", "( CARDINAL ) The landlord shall also be entitled to charge the tenant the turnover tax payable on the rent . If the landlord does this , he must however deduct from the expenses which he passes on to the tenant the tax ( PERSON ) payable thereon .", "... \"", "\" Agreements concerning the amount of the basic rent", "( CARDINAL ) Agreements between the landlord and the tenant concerning the amount of the basic rent for LOC rented under a head lease shall be permissible , irrespective of the restrictions set out in sub - section ( CARDINAL ) , up to the amount appropriate to the size , type , layout , location , fittings and condition of the property , if :", "the rented property is not used for residential purposes ;", "...", "the property is located in a building which has been newly constructed on the basis of a building permit issued after DATE , or if the LOC for rent have been newly created by conversion , the addition of an extra storey , the installation of fixtures or the building of an extension on the basis of a building permit issued after DATE ; ...", "the property is located in a building which qualifies for protection as a monument , or in order to preserve the townscape or local architectural environment or on similar grounds of public interest , provided that , apart from the grant of public funds , the landlord has himself made a considerable financial contribution for its preservation after DATE ;", "the rented property is a class A apartment with a usable floor - space of over GPE or a class B apartment with a usable floor - space of over CARDINALmCARDINAL , provided that the landlord lets an apartment of this description within DATE of its vacation by the previous tenant or occupier to a person not entitled to succeed to the rights of the previous tenant ;", "the rented property is a class A or B apartment in a good condition , the standard of which has been raised by the landlord , after DATE , by combining class C or D apartments , by other large - scale construction work for the extension or conversion of CARDINAL or more class C or D apartments or otherwise by means of considerable financial expenditure ; ...", "the rented property is a class C apartment in a good condition , the standard of which has been raised by the landlord , after DATE , by combining class D apartments or by other large - scale construction work for the extension or conversion of CARDINAL or more class D apartments or otherwise by the investment of considerable financial expenditure ; ...", "the tenancy has been in existence for DATE .", "( CARDINAL ) If the conditions set out in sub - section ( CARDINAL ) are not satisfied , the basic rent agreed between the landlord and the tenant for an apartment rented under a head lease may not exceed , per DATE and per square metre of usable floor - space :", "ATS CARDINAL for a class A apartment , that is a habitable apartment with CARDINAL of usable floor - space , comprising at least a room , a kitchen ( kitchenette ) , hall , lavatory and bathing facilities corresponding to the current standard ( bathroom or bathing recess ) and which has central heating , or single - storey heating , or comparable built - in heating and a source of hot water ;", "ORG CARDINAL for a class B apartment , that is a habitable apartment comprising at least a room , a kitchen ( kitchenette ) , hall , lavatory and bathing facilities corresponding to the current standard ( bathroom or bathing recess ) ;", "ORG CARDINAL for a class C apartment , that is a habitable apartment which has at least inside water facilities and lavatory ;", "ATS CARDINAL for a class D apartment , that is an apartment which has either no inside water facilities or no inside lavatory , or which has these facilities CARDINAL of which is however not usable and has not been repaired within a reasonable time after the tenant has informed the landlord [ of the defective state ] .", "( CARDINAL ) Classification in accordance with sub - section ( CARDINAL ) shall be determined by the standard of equipment of the apartment at the time of the conclusion of the lease . ...", "( CARDINAL ) The amounts specified in sub - section ( CARDINAL ) shall decrease or increase in accordance with any variation of the DATE Consumer Price Index published by ORG , or the index replacing it , as compared with the time when LAW comes into force . Such variation shall not be taken into account if it does not exceed PERCENT of the relevant reference figure . ...", "( CARDINAL ) If the basic rent agreed under sub - section ( CARDINAL ) exceeds the appropriate amount for the size , type , layout , location , fittings and condition of the property , the agreement as to rent shall be invalid to the extent that it exceeds this maximum . If the basic rent has to be calculated according to the provisions of sub - sections ( CARDINAL ) and ( CARDINAL ) , the agreement as to rent shall be invalid to the extent that it exceeds the maximum permitted in those sub - sections .", "... \"", "\" Increase in the basic rent", "( CARDINAL ) Where the costs of urgent , major maintenance work to be completed by the landlord , including interest and other costs relating to the securing of the necessary funds , within the meaning of section CARDINAL(CARDINAL)CARDINAL , are not covered by the sum of the rent surplus or rent deficit ( PERSON oder Mietzinsabgänge ) constituted over DATE , and exceed the expected rental income for the period of amortisation , the basic rent may be increased to cover the shortfall . To establish the amount of the requisite increase the following factors shall be taken into account :", "the amount of the rent surplus or rent deficit resulting from DATE including any grant awarded in connection with the execution of the work ;", "reasonable costs in respect of urgent maintenance work as set out in an estimate , including reasonable administrative and supervision costs in so far as these do not exceed PERCENT of the construction costs . These costs are to be reduced or increased , as the case may be , by any surplus or deficit ( shortfall ) DATE . ;", "a period of amortisation not exceeding DATE , which is to be fixed , according to a fair assessment , with regard to the period in which in the light of experience and on the basis of ordinary durability such or similar work is to be repeated and having regard to the financial position of the landlord and all the tenants in the building ;", "the landlord ’s capital required to finance the \" shortfall \" , whether such capital is his own or borrowed , together with the costs relating to the securing of the necessary funds , if they are borrowed , and the DATE repayments thereon as well as reasonable interest attaching thereto ;", "an overall amount , freely determined ( ‘ nach freier Überzeugung’ : LAW ) , representing the costs of recurring maintenance work and regular payments due in respect of wealth tax plus surcharge attaching to the ownership of the property , as well as any DATE repayments covering capital and interest for earlier maintenance work financed in accordance with the provisions of section CARDINAL(CARDINAL)CARDINAL ;", "the total amount of the DATE basic rents for the rented premises , which , for the purposes of standardising the calculation , shall be determined as follows :", "( a ) for the rented dwellings each basic rent fixed pursuant to section CARDINAL(CARDINAL ) to ( CARDINAL ) ;", "...", "... \"", "\" Basic rent - rendering of accounts", "( CARDINAL ) The landlord shall provide a clear statement of the income and expenditure for DATE .", "With regard to income the statement shall indicate :", "( a ) the amounts paid to the landlord for the rented premises as basic rent ( including increased rent and maintenance contributions ) ;", "...", "( e ) the grants which the landlord receives in connection with maintenance or useful improvement work .", "With regard to expenditure the statement may indicate :", "( a ) the amounts spent in respect of the ordinary maintenance ( section CARDINAL ) or useful improvement ( sections CARDINAL and CARDINAL ) of the building , as evidenced by invoices and receipts ;", "( b ) PERCENT of the costs , as evidenced by invoices and receipts , which the landlord has incurred in respect of the ordinary maintenance ( section CARDINAL ) or useful improvement ( sections CARDINAL and CARDINAL ) of the building in DATE in which the tenant has not been required to pay increased basic rent under section CARDINAL(CARDINAL ) or ( CARDINAL ) ;", "( c ) amounts which the landlord is required to pay in respect of wealth tax plus surcharge attaching to the ownership of the property .", "( CARDINAL ) The difference between the income and expenditure for DATE as indicated constitutes the rent surplus or rent deficit for DATE , as the case may be .", "... \"", "\" Running costs and current taxes", "( CARDINAL ) The following costs incurred by the landlord shall be regarded as running costs :", "the supply of the LOC with water ... ;", "regular chimney - sweeping in accordance with the relevant regulations , drain - cleaning , waste disposal and pest control ;", "the suitable lighting of parts of the building to which there is general access ... ;", "appropriate fire insurance for the building ... ;", "... statutory civil liability insurance ... and insurance against damage caused by mains water , including corrosion ;", "appropriate insurance for the building against other risks ... ;", "the administrative costs referred to in LAW ;", "...", "... \"", "\" Exorbitant basic rent", "...", "( CARDINAL ) The tenant under the head lease of an apartment rented before LAW came into force may require the landlord to reduce the basic rent which was previously agreed if :", "the conditions set out in section CARDINAL(CARDINAL)CARDINAL to CARDINAL were not satisfied in respect of the apartment when the amount of the basic rent was agreed , and", "the agreed basic rent exceeds by CARDINAL the amount of the basic rent calculated under section CARDINAL(CARDINAL ) for the size and class of the apartment at the time of the tenancy agreement or a subsequent improvement to the standard of the LOC , financed by the landlord .", "( CARDINAL ) If the tenant under the head lease requires the landlord to reduce the agreed basic rent , the agreement concerning the basic rent shall be invalid as from DATE on which rent becomes due following receipt of the request , to the extent that the basic rent exceeds CARDINAL times the amount calculated for the size and class of the apartment ( sub - section ( CARDINAL)CARDINAL ) . ... \"", "\" Maintenance contribution", "( CARDINAL ) The maintenance contribution shall be calculated as follows :", "For an apartment , the amount actually paid as basic rent or increased basic rent shall be subtracted from CARDINAL of the amount calculated under section CARDINAL(CARDINAL)CARDINAL and ( CARDINAL ) as the permissible basic rent ;", "...", "( CARDINAL ) If the rent which the tenant under the head lease has to pay for LOC rented before the entry into force of the present LAW , under the previous legislation or an earlier agreement , is so low that a maintenance contribution results from the application of sub - section ( CARDINAL ) , the landlord may require the tenant under the head lease to pay the maintenance contribution calculated in accordance with sub - section ( CARDINAL ) , in addition to the basic rent or increased basic rent applying hitherto , in order to guarantee financial provision in advance for identifiable maintenance work required in the foreseeable future , provided that rented LOC are located in a building the demolition of which has not been authorised or ordered by the housing authorities . The landlord must inform the tenant under the head lease in writing of this demand at DATE for payment of rent on which he is claiming payment of the maintenance contribution and must undertake to use such contribution thus claimed within DATE of its payment to finance maintenance work , the costs of which are not covered by the sums available from the rent surplus and to render a separate account ( section PERSON ) ) relating to this expenditure on DATE . The written demand must further specify the amount of the basic rent or increased basic rent to be paid for the premises , the usable floor - space , and in the case of apartments , the class of apartment at the time of the conclusion of the tenancy agreement .", "... \"", "Subsequently the legislature amended various provisions of the DATE Act . In particular it clarified sections DATE by providing for an improvement contribution .", "ORG The restrictions on the landlord ’s right to terminate leases ( see paragraph CARDINAL above ) have in substance been maintained by the DATE LAW .", "ORG Certain measures affecting the tenancy , including a reduction of rent under LAW , require a judicial decision in the event of a dispute . According to section DATE the relevant procedure takes place before the competent ORG in non - contentious proceedings ( PERSON ) .", "However , in certain municipalities , where this is justified by the number of cases , an administrative body may be set up to deal with the matter in the first place ( section CARDINAL ) . In these municipalities the court procedure can be initiated only after the administrative decision has been given . The court procedure is not construed as an appeal against this decision , but as an entirely new procedure which has the effect of simply setting aside the administrative decision ( sections DATE and DATE ) .", "ORG The DATE LAW was adopted after heated debate in ORG and in the media , in which representatives of the political parties and interest groups took part . This discussion has continued .", "Harsh criticism was expressed in particular concerning the extremely complicated structure of the legislation and the resultant administrative difficulties created for the landlords . As regards the introduction of square metre rents , the criticism focussed on the appropriateness of this system as such , the lack of differentiation according to the particular circumstances of the buildings concerned especially as to regional market differences , and the low amount of the statutory rents which in many cases are allegedly not sufficient to cover normal maintenance costs . It has also been suggested in DATE that there is no justification for applying the system of square metre rents to existing leases and for leaving it to the tenants concerned to apply for a reduction .", "In the latter respect it was disputed whether this measure amounted to an expropriation and whether it was in conformity with the LAW and LAW .", "Nevertheless , this matter has not been brought before ORG . According to the relevant provisions of LAW ( GPE , Articles CARDINAL and CARDINAL ) , the individuals concerned have no right to apply directly to this court if the civil courts are competent . The civil appellate courts can request a review by ORG if they have doubts as to the constitutionality of a legal provision which they are required to apply in a particular case ( Articles CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) of LAW ) . However , as the present case shows , the competent civil courts had no such doubts concerning section CARDINAL of the DATE LAW .", "ORG This is confirmed by a decision of ORG of DATE , in which it held that there was no doubt as to the constitutional validity of this provision . ORG stated as follows :", "\" In passing LAW , the legislature has , for reasons which are understandable from a historical point of view , limited freedom of contract with regard to the amount of rent payable for properties covered by the LAW . Over DATE , always with reference to current needs , further properties were removed from the sphere of freely negotiated rents , determined by supply and demand . A relaxation was followed by the re - introduction of tighter controls ( Rent LAW , ORG No . DATE ; LAW , ORG . PERSON ) , which led to a situation in which the legislature considered fundamental reform to be necessary .", "The legislature therefore restricted agreements on the basic rent for LOC covered by the new legislation generally to the amount regarded as reasonable with reference to the size , type , layout , location , fittings and condition of the LOC and for the sake of greater clarity laid down maximum limits for the most common types of apartments ( section CARDINAL(CARDINAL ) of LAW ) . At the same time , it regarded the fundamental aim of the transitional provisions as being to achieve the gradual and smoothest possible adjustment of existing leases to the new rules . In this connection , it was recognised that this adjustment would be at once the most problematic and at the same time the most urgent part of the transitional arrangements . ...", "...", "Undeniably this constitutes an interference with existing leases . Indeed this was the legislature ’s declared intention .", "In this connection it must not be overlooked that the obligation to pay rent for an apartment constitutes a continuing obligation and that in general such obligations are not entirely immune to certain adjustments and changes . ...", "Existing legal rights are not covered by the general protection afforded under LAW ( VfSlg [ FAC ORG ] CARDINAL/CARDINAL : ‘ There is no provision in LAW which in principle prevents ordinary legislation from interfering with lawfully acquired rights’ ) . The new provisions are entirely consistent with the legislative policy of bringing existing leases into line with the general system of the reform of the rent legislation and are intended to keep the hiatus between the old and new systems to the minimum . LAW ) and ( CARDINAL ) of LAW provide an appropriate mechanism for this adjustment . They also enable the landlord to receive PERCENT more rent than he could charge if the tenant gave notice and he had to re - let the apartment . These provisions are intended merely to prevent the sitting tenant from paying an ‘ unduly high rent’ in relation to what is considered the reasonable square metre rent , if he is unable or unwilling to terminate the lease and rent another apartment . As the tenant can terminate the lease at any time , the right to obtain the fully agreed rent is in fact limited to the effective duration of the lease . When drafting the transitional provisions in section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW , the legislature was guided by the existing rules in LAW , which were already in force when the existing leases were entered into , and by the ideas underlying LAW ... , and , accordingly , allowed rent to be reduced to CARDINAL times the amount of the newly established reasonable rent ... . This power to take the initiative vested in the tenant must not be regarded in isolation but must be seen in the whole context of the new legislation . In granting it , the legislature has neither acted arbitrarily nor exceeded its powers . It has remained within the bounds of the freedom to form legislative policy which , in case of doubt , it must be assumed to have . To place too many limits on this freedom would lead to inflexibility with regard to legal situations and hamper innovations even where necessary .", "The possibility available to tenants of applying for a reduction in rent under section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW is clearly disadvantageous to landlords who have concluded an agreement on the amount of rent to be paid by the tenant under existing legislation and now find that their confidence in the law has been misplaced . It should however be recognised that this is counterbalanced by a series of provisions as a result of which rent is no longer frozen at the DATE level ( e.g. section CARDINAL(CARDINAL ) or section CARDINAL(CARDINAL ) of LAW ) . In addition the possibility of charging maintenance contributions under LAW of LAW is a measure which facilitates the adjustment of existing leases .", "Of course the new system may bring more disadvantages for some landlords and more advantages for others . However , at all events , it is merely a restriction on the right of property ( PERSON ) since the rent for a sitting tenant may still exceed the amount chargeable under the new legislation by PERCENT . The legislature may authorise an expropriation only if such a measure serves the public good and the general interest ( see , inter alia , PERSON CARDINAL/CARDINAL ; DATE ; DATE ) . LAW provides that an expropriation may be effected only if it is justified in the general interest ( see , inter alia , PERSON CARDINAL/CARDINAL ; DATE ) . Although the first sentence of LAW does indeed apply to restrictions on the right of property , the legislature can lay down such restrictions without fear of acting in breach of the LAW , provided that they do not threaten the very substance of the fundamental right to the inviolability of property or otherwise violate a constitutional principle binding on the legislature ( ORG ; CARDINAL etc ) . But this is not the case of the transitional provisions contained in section CARDINAL(CARDINAL ) and ( CARDINAL ) of the act which were required by the public interest and for the common good , because they fit into the balanced structure designed to cater for the adjustment of the old system to the new one and are part of the necessary harmonisation leading to the desired objective . Under LAW No . CARDINAL ( PCARDINAL - CARDINAL ) to ORG , restrictions on the right of property must be in accordance with the general interest . In its decision of DATE ( G CARDINAL/CARDINAL - CARDINAL ) , ORG confirmed the principle laid down in previous decisions that restrictions on the right of property which take account of these principles are not unconstitutional . \" ( ORG DATE , No . CARDINAL , pp . CARDINAL - CARDINAL )" ]

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[ "The applicant was born in DATE and is currently serving a prison sentence .", "In TIME CARDINAL DATE a minor , PERSON , was found dead in his apartment , with several knife wounds . On DATE the local prosecutor ’s office instituted criminal proceedings in connection with the murder .", "The applicant ( DATE at that time ) was a school acquaintance of PERSON Before the incident , PERSON had invited the applicant to his home on many occasions .", "At TIME on DATE the police visited the applicant ’s home . In the presence of his mother the applicant confessed and the police took him to the police station .", "The police did not draw up arrest order and the applicant did not have his procedural rights explained to him on DATE , as required by Article CARDINAL of the Code of Criminal Procedure . According to the applicant , he was questioned about the incident and subjected to ill - treatment by the police .", "At TIME on DATE the applicant was examined by a medical expert , who reported abrasions on the applicant ’s hand , back , waist and shoulder . The expert opined that the injuries were light and had been inflicted DATE before the examination . The applicant remained in police custody .", "At TIME on CARDINAL May CARDINAL the applicant was given access to a lawyer he had chosen himself . His procedural rights were explained to him , including the right to remain silent and not to incriminate himself , to be informed of the charges against him , to have a meeting with a lawyer before being questioned , to seek to examine evidence , to seek withdrawal of an investigator , to participate in investigative actions , and to lodge complaints .", "TIME and TIME DATE an investigator from the prosecutor ’s office questioned the applicant in the presence of the lawyer and a teacher . During that questioning the applicant stated that he had entered the victim ’s apartment , using a key he and a schoolmate had stolen from PERSON beforehand ; the applicant ’s plan was only to steal money , but when PERSON arrived unexpectedly and a fight broke out between them he grabbed a knife and stabbed him several times ; he then took money and left the apartment .", "At TIME on CARDINAL May CARDINAL an investigator from the prosecutor ’s office drew up an arrest order in respect of the applicant , relying on Articles CARDINAL and CARDINAL of the Code of Criminal Procedure .", "On CARDINAL DATE the applicant was questioned once again . In the presence of the lawyer the applicant confirmed his previous statements .", "On DATE the local court remanded the applicant in custody as a preventive measure and noted , inter alia , that the applicant had been arrested as a suspect at TIME on DATE . At the court hearing the applicant was represented by the lawyer . They both submitted , inter alia , that the applicant had acknowledged guilt .", "On DATE the applicant ’s father requested that criminal proceedings be instituted against the police officers , claiming that after arrest the applicant was subjected to ill - treatment , and that the lawyer was allowed in only TIME .", "On DATE a forensic medical expert confirmed the conclusions of the medical expert of CARDINAL DATE .", "On DATE the applicant was questioned once again in the presence of the lawyer . He was clear that it was PERSON who had initiated the fight and that all he could remember was when he found himself holding a knife and PERSON lying on the floor : he was really scared then . He further submitted that after he was arrested police officers had beaten him up , thus making him confess in detail .", "On DATE the investigator of the local prosecutor ’s office refused to institute criminal proceedings into the alleged ill - treatment for lack of corpus delicti .", "On DATE the applicant was further questioned in the presence of the lawyer . The applicant once again stated that he could not remember what happened during the fight with PERSON until the moment when the latter was lying dead on the floor .", "Following the completion of the investigation the case was referred to court for the applicant to be tried .", "On DATE ORG ( “ the trial court ” ) , having regard to the applicant ’s complaints of ill - treatment , ordered additional inquiries in relation to those allegations .", "On DATE the local prosecutor once again refused to institute criminal proceedings into the alleged ill - treatment for lack of corpus delicti .", "When questioned by the trial court , the applicant admitted that he had entered PERSON ’s apartment and stolen the money . He could not explain how the murder was committed , as he could not remember what had happened .", "On DATE the trial court found the applicant guilty of aggravated murder and robbery and sentenced him to CARDINAL years’ imprisonment . The judgment was based on the self - incriminatory statements made by the applicant on CARDINAL May CARDINAL and later and other documentary , oral and material evidence . In the operative part of the judgment the trial court ordered that the term of imprisonment be counted from CARDINAL DATE .", "The applicant and his representative appealed against that judgment , alleging , inter alia , that the applicant had committed the murder when mentally disturbed and in a fight with the victim . They further insisted that the applicant ’s procedural rights had been infringed , as he had been subjected to ill - treatment and his status as an arrested person had not been formalised straight after the arrest .", "On DATE ORG held a hearing in the case and the applicant submitted that there had been an accomplice , PERSON , in PERSON ’s apartment who had committed the murder . He alleged that he had been afraid to tell the truth earlier because he had been threatened by the accomplice , who was much older than him .", "ORG rejected the applicant ’s submissions , finding that the applicant ’s guilt had been well established by the evidence in the case file and there had been no indication that the applicant ’s rights had been violated in the course of the investigation . However , it changed the applicant ’s sentence for robbery , reclassifying it as theft .", "On DATE the prosecutor ’s office instituted an investigation of the applicant ’s allegations concerning involvement of the accomplice A. in the crimes .", "On DATE the investigation was terminated as no evidence of ORG ’s involvement had been obtained .", "The relevant part of LAW reads as follows :", "“ ... In the event of an urgent necessity to prevent or stop a crime , bodies authorised by law may hold a person in custody as a temporary preventive measure , the reasonable grounds for which shall be verified by a court within TIME . The detained person shall be released immediately if he or she has not been provided , within TIME of the moment of detention , with a reasoned court decision in respect of the holding in custody . ...", "Everyone who has been detained has the right to challenge his or her detention in court at any time . ... ”", "The relevant provisions of the Code read as follows :", "“ A person shall be considered a suspect if :", "CARDINAL ) he / she has been arrested on suspicion of having committed a crime ;", "CARDINAL ) NORP in his / her respect a preventive measure has been applied until a decision has been made to bring that person to the proceedings as an accused .", "A suspect is entitled to know what he / she is suspected of ; to give evidence or refuse to give evidence and answer questions ; to have defence counsel and a meeting with him before the first questioning ; to challenge the lawfulness of his / her arrest before the court ...", "It shall be stated in the arrest order or the decision to apply a preventive measure that the suspect has had his or her rights explained . ”", "“ The participation of defence counsel during the inquiry and the preliminary investigation and during consideration of the criminal case in the first - instance court is obligatory :", "CARDINAL ) NORP in the cases concerning a person who is suspected of or charged with a crime committed at the age of less than eighteen years , DATE from the moment when such a person is considered a suspect or when such a person has been charged with the crime ; ... ”", "“ The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on CARDINAL of the following grounds :", "NORP if the person is discovered whilst or immediately after committing an offence ;", "NORP if eyewitnesses , including victims , directly identify this person as the one who committed the offence ;", "NORP if clear traces of the offence are found either on the body of the suspect , or on his clothing , or with him , or in his home .", "If there is other information giving ground to suspect a person of a criminal offence , a body of inquiry may arrest such a person if the latter attempted to flee , or does not have a permanent place of residence , or the identity of that person has not been established .", "For each case of a suspect ’s arrest , the body of inquiry shall be required to draw up an arrest order ( протокол затримання ) outlining the grounds , the motives , DATE , time , DATE , the place of arrest , the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest , in accordance with the procedure provided for in paragraph CARDINAL of Article CARDINAL of the present Code . The arrest order shall be signed by the person who drew it up and by the detainee .", "A copy of the arrest order with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor . At the request of the prosecutor , the material which served as a ground for the arrest shall be sent to him as well . ...", "Within TIME of the arrest , the body of inquiry shall :", "( CARDINAL ) NORP release the detainee if the suspicion that he committed the crime has not been confirmed , if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of paragraphs CARDINAL and CARDINAL of the present Article ;", "( CARDINAL ) NORP release the detainee and select a non - custodial preventive measure ;", "( CARDINAL ) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her .", "If the arrest is appealed against to a court , the detainee ’s complaint shall be immediately sent by the head of the detention facility to the court . The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure . If the complaint is received after the preventive measure was applied , the judge shall examine it within DATE of receiving it . If the request has not been received or if the complaint has been received after the term of TIME of detention , the complaint shall be considered by the judge within DATE after receiving it .", "The complaint shall be considered in accordance with the requirements of Article CARDINAL - CARDINAL of this Code . Following its examination , the judge shall give a ruling , either declaring that the arrest is lawful or allowing the complaint and finding the arrest to be unlawful .", "The ruling of the judge may be appealed against within DATE from the date of its adoption by the prosecutor , the person concerned , or his or her defence counsel or legal representative . Lodging such an appeal does not suspend the execution of the court ’s ruling .", "Preliminary detention of a suspect shall not last for CARDINAL .", "If , within the terms established by law , the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre - trial detention facility , the head of the pre - trial detention facility shall release the person concerned , drawing up the order to that effect , and shall inform the official or body that carried out the arrest accordingly . ”", "“ An investigator may arrest and question a person suspected of a crime according to procedure envisaged by Articles CARDINAL , CARDINAL - CARDINAL , and CARDINAL of the Code .", "“ ... If a minor has not attained the age of DATE ... a pedagogue ... may be invited ... to be present during the introduction of charges against a minor and his questioning ... ”", "The relevant provisions of LAW ( as worded at the relevant time ) can be found in the judgment of GPE v. GPE ( no . CARDINAL , § DATE , DATE ) .", "The relevant extracts from the report read as follows :", "“ CARDINAL . It appears from the information gathered during the DATE visit that the prompt and accurate recording of a person ’s detention ( i.e. from the moment he / she is obliged to remain with the ORG staff ) remains a considerable area of concern . The delegation ’s findings revealed that , in many instances , periods of detention ( from TIME DATE ) went unrecorded in the protocols of detention . At the same time , custody registers often contained incorrect data , and on occasion , misleading information . By way of illustration , the register of a district police station indicated that a person was detained there for TIME while it was subsequently established that the person in question was in fact held at the police station concerned for DATE . Resolute action is required on the part of the NORP authorities to put an end to this state of affairs .", "The ORG recommends that steps be taken immediately to ensure that whenever a person is deprived of liberty by the ORG , for whatever reason , this fact is formally recorded without delay . Further , once a detained person has been placed in a cell , all instances of his / her subsequent removal from the cell should be recorded ; that record should state the date and time the detained person is removed from the cell , the location to which he / she is taken and the officers responsible for taking him / her , the purpose for which he / she has been removed from the cell , and the date and time of his / her return . ”" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant lodged a claim for compensation with ORG ( Sąd Wojewódzki ) .", "The proceedings were terminated on DATE . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG .", "On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .", "Section CARDINAL of the CARDINAL Act reads , in so far as relevant :", "Section CARDINAL reads , in so far as relevant :", "“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”", "Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :", "“ CARDINAL . The court shall dismiss a complaint which is unjustified .", "NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .", "At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .", "NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”", "Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :", "“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .", "... ”", "On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE she brought before ORG ( “ the first - instance court ” ) a compensation claim against ORG ( “ the hospital ” ) for pecuniary and non - pecuniary loss sustained as a result of an alleged medical negligence during a DATE surgery .", "On DATE the first - instance court ordered the applicant to propose , within DATE , an expert so that to assess whether she had received proper care in the hospital .", "On DATE the applicant made a proposal , while the hospital consented with PERSON . being the expert on DATE .", "On DATE the first - instance court ordered the expert to produce his opinion , which he did on DATE . On DATE , the applicant increased the value of her claim .", "On DATE the applicant requested additional expert examination . As on DATE the expert requested exclusion , the court ordered the applicant to propose a new expert within DATE . She proposed a new expert on DATE . The expert submitted his report only on DATE , while being ordered to do so on DATE .", "After QUANTITY hearings being adjourned on the applicant ’s request and QUANTITY hearings on the hospital ’s request , the first - instance court ruled partly in favour of the applicant on CARDINAL DATE .", "On DATE ORG upheld the parties’ appeals and remitted the case for a renewed consideration .", "Hearings scheduled for DATE and CARDINAL DATE respectively , were adjourned due to the absence of witnesses .", "On DATE the first - instance court requested an additional expert examination by PERSON .. On DATE the court withdrew this request due to the expert ’s repeated absence from hearings .", "On DATE the first - instance court dismissed the applicant ’s claim . On CARDINAL DATE ORG upheld the applicant ’s appeal and referred the case back for a fresh consideration .", "On DATE the first - instance court ordered ORG to draw up the third expert report .", "On DATE ORG informed the court that the applicant had failed to attend medical examinations fixed for CARDINAL , DATE and DATE , respectively .", "On DATE the first - instance court dismissed the applicant ’s claim relying , inter alia , on her failure to undergo medical examination . This decision was upheld by ORG ’s and ORG decisions of CARDINAL DATE and DATE , respectively . This latter decision was served on the applicant on DATE ." ]

[ "6" ]

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[ "The applicant was born in DATE and is at present imprisoned in GPE .", "On DATE , after a fight with his CARDINAL sons , the applicant killed his wife and injured CARDINAL of his sons . He was arrested on DATE .", "At the end of the preliminary investigation the GPE prosecution service asked for the applicant to be committed to stand trial for murder , attempted murder , ill - treatment of his family and unauthorised possession of a firearm", "At a hearing on DATE before the GPE preliminary hearings judge ( giudice dell'udienza preliminare CARDINAL “ the ORG ” ) the applicant asked to be tried under the summary procedure , a simplified process which entailed a reduction of sentence in the event of conviction . In the version in force at that time LAW ( “ the ORG ” ) provided that , if the crime committed by the defendant was punishable by life imprisonment , the appropriate sentence should be DATE . ( see paragraph CARDINAL below ) .", "The ORG agreed to follow the summary procedure . Further hearings were held on DATE and DATE . The last - mentioned hearing began at TIME", "On DATE the ORG found the applicant guilty and noted that he was liable to a sentence of life imprisonment ; however , as the applicant had elected to stand trial under the summary procedure , the judge sentenced him to a term of DATE .", "On DATE ORG at ORG appealed on points of law against ORG judgment of CARDINAL DATE . The prosecution argued that the ORG should have applied LAW no . CARDINAL of DATE , which entered into force on DATE when the applicant was convicted . After being amended by parliament , Legislative Decree no . CARDINAL was converted into PERSON no . CARDINAL of DATE .", "NORP The prosecution contended in particular that LAW no . ORG had amended LAW ORG and now provided that , in the event of trial under the summary procedure , life imprisonment was to be substituted for life imprisonment with TIME isolation if there were “ cumulative offences ” ( concorso di reati ) or a “ continuous offence ” ( reato continuato DATE see paragraph CARDINAL below ) . The ORG 's failure to apply Legislative Decree no . CARDINAL amounted to “ a manifest error of law ” ( evidente errore di diritto ) .", "On DATE and DATE the applicant appealed . His chief submission was that he should be acquitted on the ground that his conduct had not been intentional or that , at the time when the offences were committed , he was incapable of understanding the wrongful nature of his acts and of forming the intent to commit them ( incapacità de intendere e volere ) . In the alternative , he requested a reduction of his sentence .", "As there were now CARDINAL appeals , at CARDINAL different levels of jurisdiction , ORG appeal on points of law was changed to an appeal on both facts and law and ORG was declared to have jurisdiction to hear the case ( LAW ORG ) .", "The hearing in private before ORG was held on DATE . The applicant was not present and was tried in absentia . He alleged that , as he had difficulty in walking , he had asked to be taken to the courtroom by ambulance or some other suitably adapted vehicle but that , as the prison management had refused his request , he had been deprived of the possibility of participating in the appeal proceedings .", "In a judgment of DATE , deposited with the registry on DATE , ORG sentenced the applicant to life imprisonment .", "It observed that before the entry into force of Legislative Decree no . CARDINAL Article CARDINAL § CARDINAL of the ORG had been interpreted to mean that life imprisonment was to be replaced by a term of DATE , whether or not it was to be accompanied by daytime isolation on account of an accumulation of offences with the most serious one . In following that approach , the ORG had fixed the sentence in relation to the most serious offence , without considering whether to order the applicant 's TIME isolation on account of his conviction on the other charges against him .", "NORP However , Legislative Decree no . CARDINAL of DATE had entered into force on DATE of the ORG 's decision . As its provisions were classed as procedural rules , it was applicable to pending proceedings , according to the tempus regit actum principle . ORG of Appeal further observed that under the terms of LAW no . CARDINAL the applicant could have withdrawn his request to be tried under the summary procedure and have stood trial under the ordinary procedure . As he had not done so , the first - instance decision ought to have taken account of the change in the rules on penalties which had taken place in the meantime .", "On DATE the applicant appealed on points of law . He argued in the first place that the appeal proceedings should be declared null and void because he had not been able to participate , as defendant , in the appeal hearing on DATE . In his second and third grounds of appeal the applicant asserted that the trial courts had not given sufficient reasons either for ruling that he had intended to commit murder or for their finding that he knew what he was doing and had acted intentionally when committing the offences . Lastly , he contested the finding of an aggravating circumstance ( that he had acted for futile reasons ) and complained of the refusal to grant him extenuating circumstances .", "On DATE the applicant submitted further grounds of appeal . He contended that a fresh expert opinion should have been produced on his mental state at the time when the offences were committed and presented new arguments on the question of aggravating and extenuating circumstances . Lastly , he submitted that the penalty deemed to be applicable in his case ( life imprisonment with isolation ) was excessive .", "NORP In a judgment deposited with its registry on DATE , ORG dismissed the applicant 's appeal .", "On DATE the applicant lodged an extraordinary appeal on the ground of a factual error ( Article CARDINALa of the ORG ) . He asserted in the first place that the domestic courts ' finding that he could have been taken to the appeal hearing by an ordinary means of transport and did not need an ambulance had been the result of an erroneous reading of the documents in the file . In addition , his absence , as the defendant , from that hearing had breached LAW . The applicant further alleged that the sentence of life imprisonment imposed on him following the changes made by LAW no . CARDINAL of DATE , and thus through a retrospective criminal - law provision , had breached LAW and the principles of fair trial . He submitted that his waiver of procedural safeguards as a result of electing to stand trial under the summary procedure had not been compensated for by the reduction of his sentence promised by the ORG at the time when he made that choice . Lastly , he maintained that life imprisonment was an inhuman and degrading punishment and as such contrary to LAW .", "In a judgment of CARDINAL DATE , deposited with its registry on DATE , ORG declared the applicant 's extraordinary appeal inadmissible . It observed that he was not complaining of factual errors committed by the domestic courts but essentially attempting to challenge ORG assessment on points of law .", "The summary procedure is governed by ORG CARDINAL and CARDINAL to CARDINAL of the ORG . It is based on the assumption that the case can be decided as the file stands ( allo stato degli atti ) at the preliminary hearing . A request to be tried under the summary procedure may be made orally or in writing at any time before the parties have made their submissions at the preliminary hearing . If the summary procedure is followed , the hearing takes place in private and is given over to the parties ' oral submissions ; in principle , they must base their arguments on the documents included in the prosecution 's file , even though , exceptionally , oral evidence may be allowed . If the judge finds the defendant guilty , the sentence imposed is reduced by CARDINAL ( Article CARDINAL § CARDINAL ) . The relevant domestic provisions are described in the GPE v. GPE judgment ( [ ORG ] , no . CARDINAL , § § DATE , ECHR CARDINAL- ... ) .", "The ORG also gave an overview of the provisions governing the summary procedure in its PERSON v. GPE judgment ( no . CARDINAL , DATE ) . At the time of the events which gave rise to the PERSON case the summary procedure was not available to persons accused of crimes punishable by life imprisonment . In judgment no . CARDINAL of DATE ORG had quashed the provision of LAW making that possibility available because it went beyond the powers parliament had delegated to the government with a view to the adoption of LAW ( “ the ORG ” ) .", "By PERSON no . CARDINAL of DATE , which came into force on DATE , parliament reintroduced the possibility of allowing a defendant liable to a sentence of life imprisonment to opt for the summary procedure . LAW provides :", "Section CARDINAL", "“ The following changes shall be made to LAW :", "...", "( b ) in paragraph CARDINAL , after the first sentence is added the following [ second and last sentence ] : ' life imprisonment shall be replaced by DATE imprisonment ' ” .", "Legislative Decree no . CARDINAL of DATE , which came into force on DATE and was converted into PERSON no . CARDINAL of DATE , purported to give an authentic interpretation of the second sentence of paragraph CARDINAL of Article CARDINAL of the ORG and added a third sentence .", "Legislative Decree no . CARDINAL included , under the chapter entitled “ Authentic interpretation of Article CARDINAL paragraph CARDINAL of LAW and provisions regarding the summary procedure in trials for offences punishable by life imprisonment ” , Articles CARDINAL and CARDINAL , which provide :", "Article CARDINAL", "“ CARDINAL . In Article CARDINAL , paragraph CARDINAL , [ second and ] last sentence , of LAW , the words ' life imprisonment ' should be taken to mean life imprisonment without daytime isolation .", "In Article CARDINAL , paragraph CARDINAL , of LAW is added , in fine , the following sentence : “ Life imprisonment with daytime isolation , in the event of cumulative offences or a continuous offence , shall be replaced by life imprisonment . ”", "Article CARDINAL", "“ CARDINAL . NORP In criminal proceedings pending on the date of the entry into force of the present legislative decree , where the defendant is liable to or has been sentenced to life imprisonment with daytime isolation , and has opted for the summary procedure ... , he or she may withdraw his or her request within DATE of the date on which the legislation implementing the present legislative decree enters into force . In that case , the proceedings shall be resumed under the ordinary procedure at the stage they had reached when the request was made . Any investigative findings which may have been reached may be used within the limits laid down by LAW .", "Where , on account of an appeal by the prosecution , it is possible to apply the provisions of LAW , the accused may withdraw the request referred to in paragraph CARDINAL within DATE of the time when he or she learns of the appeal by the prosecution or , if such an appeal was lodged before the entry into force of the legislation to implement the present legislative decree , within DATE of the latter date . The provisions of the second and third sentences of paragraph CARDINAL shall apply ... ”", "Article CARDINAL of the CARDINAL Criminal Code , entitled “ Succession of criminal laws ” , reads as follows :", "“ CARDINAL . No one may be punished for an act which , under the law in force at the time when it was committed , was not an offence .", "No one may be punished for an act which , under a subsequent law , does not constitute an offence ; if the defendant has been sentenced , execution of his sentence and its criminal effects shall cease .", "NORP If the law in force at the time when the offence was committed and later [ laws ] differ , the law to be applied is the one whose provisions are most favourable to the defendant , except where a final sentence has already been imposed .", "The provisions of the [ CARDINAL ] preceding paragraphs shall not apply when the later laws are exceptional and temporary .", "The provisions of the present article shall also apply where a legislative decree 's conversion into statute - law is time barred [ decadenza ] or does not take place , and where a legislative decree has been converted into statute - law with amendments . ”", "Royal Decree no . CARDINAL of DATE provides that ORG ( Gazzetta ufficiale ) is published by ORG . LAW decree reads as follows :", "“ Publication shall take place DATE during TIME ( nelle ore pomeridiane ) . ”", "By judgment no . CARDINAL of CARDINAL DATE ORG ruled that publication of a law in ORG was the “ essential and decisive moment ” among the steps taken to promulgate a legislative text . Moreover , the expression “ publication in the Official Gazette ” presupposed that the latter was placed in circulation and therefore accessible to the public . ORG observed in particular : “ [ the terms ] publication of laws ' in the ' Official Gazette [ could ] only mean ... also publication ' of the ' Official Gazette ... : otherwise there would be a negation of the very procedure of publishing laws , which , historically speaking , was designed to create an objective situation effectively permitting every individual to be aware of the acts in question ( situazione oggettiva di effettiva conoscibilità , da parte di tutti , degli atti medesimi ) . ”", "Article CARDINAL of LAW , adopted by ORG of ORG in Resolution CARDINAL A ( XXI ) of DATE , which entered into force on DATE , is worded as follows :", "“ CARDINAL . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence , under national or international law , at the time when it was committed . Nor shall a heavier penalty be imposed than the CARDINAL that was applicable at the time when the criminal offence was committed . If , subsequent to the commission of the offence , provision is made by law for the imposition of a lighter penalty , the offender shall benefit thereby .", "Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which , at the time when it was committed , was criminal according to the general principles of law recognized by the community of nations . ”", "Article CARDINAL of LAW , which was adopted on DATE at ORG and came into force on DATE , reads as follows :", "“ No one shall be convicted of any act or omission that did not constitute a criminal offense , under the applicable law , at the time it was committed . A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed . If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment , the guilty person shall benefit therefrom . ”", "At the ORG meeting in GPE on DATE ORG , ORG and ORG proclaimed LAW . LAW , entitled “ Principles of legality and proportionality of criminal offences and penalties ” is worded as follows :", "“ CARDINAL . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed . Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed . If , subsequent to the commission of a criminal offence , the law provides for a lighter penalty , that penalty shall be applicable .", "This Article shall not prejudice the trial and punishment of any person for any act or omission which , at the time when it was committed , was criminal according to the general principles recognised by the community of nations .", "The severity of penalties must not be disproportionate to the criminal offence . ”", "In the case of ORG , ORG of ORG held that the principle of the retroactive application of the more lenient penalty formed part of the constitutional traditions common to the member GPE ( see the judgment of CARDINAL DATE in joined cases C-CARDINAL/CARDINAL , C-CARDINAL/CARDINAL and C-CARDINAL/CARDINAL ) . The relevant passages of the judgment ( § § DATE ) read as follows :", "“ CARDINAL . Setting aside the applicability of Article CARDINAL of ORG to the failure to publish DATE accounts , it should be noted that , under LAW , which sets out the principle that the more lenient penalty should be applied retroactively , the new ORG CARDINAL and CARDINAL of the NORP Civil Code ought to be applied even if they entered into force only after the commission of the acts underlying the prosecutions brought in the cases in the main proceedings .", "It must be pointed out in this regard that , according to settled case - law , fundamental rights form an integral part of the general principles of law , the observance of which the ORG ensures . For that purpose , the ORG draws inspiration from the constitutional traditions common to the Member GPE and from the guidelines supplied by international treaties for the protection of human rights on which the Member GPE have collaborated or to which they are signatories ( see , inter alia , Case C CARDINAL/CARDINAL Schmidberger [ DATE ] ECR I DATE , paragraph CARDINAL and the case - law there cited , and Joined Cases C CARDINAL/CARDINAL and C CARDINAL/CARDINAL Booker Aquaculture and ORG [ DATE ] ECR I DATE , paragraph CARDINAL and the case - law there cited ) .", "DATE . The principle of the retroactive application of the more lenient penalty forms part of the constitutional traditions common to the Member GPE .", "It follows that this principle must be regarded as forming part of the general principles of Community law which national courts must respect when applying the national legislation adopted for the purpose of implementing Community law and , more particularly in the present cases , the directives on company law . ”", "The principles affirmed by ORG were repeated in a judgment of ORG of ORG given on DATE ( dismissal of appeal no . DATE ) . The relevant passages of the judgment read as follows :", "“ ... in any event the general principles of Community law take precedence over national law . In a judgment of CARDINAL DATE ORG of ORG observed that the principle of the retroactive application of the more lenient penalty forms part of the constitutional traditions common to the member GPE and it follows that the said principle must be considered one of the general principles of Community law which national courts must comply with when applying the national law adopted with a view to implementing Community law ( DATE and CARDINAL of the judgment of CARDINAL DATE ) . In the present case , consequently , it was in breach of that principle taking precedence over national law that ORG sentenced [ the accused ] on the basis of a national law adopted with a view to implementing Community law , having unlawfully disregarded the principle of the retroactive application of the more lenient penalty .", "... LAW provides , without any exception , that where , subsequent to the commission of an offence , the law provides for the application of a more lenient penalty , the offender must be given the benefit thereof . That text takes precedence over NORP law by virtue of LAW . It follows that ORG could not disregard the new more lenient law on the sole ground that the later law had expressly excluded any retroactive effect in contravention of the principle laid down by the text referred to above . ... ”", "NORP Under the terms of LAW ,", "“ In the event of a change in the law applicable to a given case prior to a final judgement , the law more favourable to the person being investigated , prosecuted or convicted shall apply . ”", "In a judgment of CARDINAL DATE , given in the PERSON case ( no . IT-CARDINAL - CARDINAL-A ) , ORG of the ORG held that the principle of the applicability of the more lenient criminal law ( lex mitior ) applied to its statute . The relevant parts of the judgment ( § § DATE ) read as follows :", "“ CARDINAL . ORG first considered whether the principle of lex mitior had been applicable in the former GPE and whether it was part of the law of ORG and then addressed the question of whether the lex mitior principle was applicable in the present case .", "NORP The contentious part of LAW is the finding of ORG that “ the principle of lex mitior applies only to cases in which the commission of a criminal offence and the subsequent imposition of a penalty took place within one and the same jurisdiction ” and that , because this ORG exercises a different jurisdiction from the national jurisdiction in which the crimes were committed , the principle does not apply . ORG notes that the question of the applicability of the principle is not one of jurisdiction , but rather CARDINAL of whether differing criminal laws are relevant and applicable to the law governing the sentencing consideration of ORG .", "The principle of lex mitior is understood to mean that , if the law relevant to the offence of the accused has been amended , the less severe law should be applied . It is an inherent element of this principle that the relevant law must be binding upon the court . Accused persons can only benefit from the more lenient sentence if the law is binding , since they only have a protected legal position when the sentencing range must be applied to them . The principle of lex mitior is thus only applicable if a law that binds ORG is subsequently changed to a more favourable law by which ORG is also obliged to abide .", "ORG is clearly bound by its own LAW , and thus to the sentencing range of a term up to and including the remainder of the convicted person 's life as provided for in LAW ) of the Rules and LAW . ORG notes that there has not been a change in the laws of ORG regarding sentencing ranges .", "The sentencing range in the former GPE would be restricted to a fixed term of imprisonment . ORG notes that , since the establishment of ORG , an accused before it can receive a maximum sentence that is not limited to a fixed term of imprisonment .", "ORG , however , reiterates its finding that ORG , having primacy , is not bound by the law or sentencing practice of the former GPE . It has merely to take it into consideration . Allowing the principle of lex mitior to be applied to sentences of ORG on the basis of changes in the laws of the former GPE would mean that GPE former GPE have the power to undermine the sentencing discretion of ORG judges . In passing a national law setting low maximum penalties for the crimes mentioned in LAW to CARDINAL of ORG statute , GPE could then prevent their citizens from being properly sentenced by this ORG . This is not compatible with ORG primacy enshrined in Article CARDINAL ) of the ORG and its overall mandate .", "In sum , properly understood , lex mitior applies to the Statute of the International Tribunal . Accordingly , if ever the sentencing powers conferred by the Statute were to be amended , ORG would have to apply the less severe penalty . So far as concerns the requirement of Article CARDINAL ) that “ the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former GPE ” , these words have to be construed in accordance with the principles of interpretation applicable to the Statute of which they form part . So construed , they refer to any pertinent laws of the former GPE which were in force at the time of commission of the crime in question ; subsequent changes in those laws are not imported .", "For the foregoing reasons , the fifth ground of appeal is dismissed . ”" ]

[ "6", "7" ]

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[ "The applicants are NORP nationals and live in GPE .", "They are owners of a real estate in GPE . On DATE the ORG ordered the applicants to pay a contribution amounting to ORG CARDINAL,CARDINAL.CARDINAL ( CARDINAL € ) for the construction of a street adjacent to their land . The contribution was based on the LOC ’s decree on contributions for the construction of local public infrastructure ( Erschließungsbeitragssatzung ) . The GPE repeatedly amended this decree ( in DATE , DATE and DATE respectively ) .", "On DATE the applicants lodged an administrative appeal ( Widerspruch ) . They contested the amount to be paid and alleged that the street had not been duly constructed . The GPE should have requested the company which had been commissioned to construct the street to reduce the price on account of the defective construction . Furthermore the applicants referred to LAW ( Baugesetzbuch ) pursuant to which the contribution for a local public infrastructure facility was only due after its final construction ( endgültige ORG ) . The street had not been finally constructed because it did not meet the conditions for the final construction of a facility as laid down in the GPE ’s decree on contributions for the construction of local public infrastructure .", "The applicants moreover accused the employees of the LOC of having acted for their own unjustified enrichment as they commissioned a firm which had evidently offered its service for speculative prices ( Spekulationspreise ) . These allegations led to criminal investigations of ORG during which CARDINAL expert opinions were furnished concerning the construction of the impugned road . The criminal investigations , instituted in DATE , were discontinued in DATE and DATE .", "On DATE the applicants requested that the execution of the order be stayed ( NORP der Vollziehung ) . The GPE rejected their motion on DATE . On DATE the applicants filed a motion for an interim injunction to stay the execution . On DATE ORG ordered the stay of the execution . On DATE ORG rejected the GPE ’s appeal .", "On DATE the applicants lodged a complaint for failure to act ( Untätigkeitsklage ) with ORG pursuant to LAW ( Verwaltungsgerichtsordnung – see “ Relevant domestic law ” LAW below ) because the Municipality had not yet decided upon their administrative appeal of DATE . ORG asked ORG to submit the CARDINAL expert opinions prepared in the course of the criminal investigations against the employees of the Municipality . In DATE at the latest ORG submitted the expert opinions to ORG .", "In DATE the GPE instituted proceedings to preserve evidence ( GPE ) before ORG . On DATE the court ordered an expert opinion on the defects of the road construction . Upon the inquiry of ORG on DATE ORG announced that the expert opinion was to be furnished at DATE . On DATE the expert opinion dated DATE was submitted to ORG .", "On DATE ORG quashed the order of the GPE dated DATE inter alia because the street had not been constructed in conformity with the GPE ’s decree . The ORG based its decision on CARDINAL of the expert opinions prepared in the course of the criminal investigations , on the expert opinion prepared in the proceedings before ORG and on CARDINAL expert opinions prepared in the context of the proceedings before it . The court also heard CARDINAL of the experts as expert witnesses .", "On the LOC ’s appeal , ORG quashed the judgment on DATE , rejected the ORG complaint and refused leave to appeal on points of law ( ORG der Revision ) . At the oral hearing on the appeal , the applicants filed CARDINAL requests for the taking of evidence .", "On DATE ORG granted the ORG request for leave to appeal , quashed the decision of ORG and remitted the matter to it , without deciding separately upon the admissibility of the appeal on points of law in order to expedite the proceedings . It held that ORG had not provided sufficient reasons for its decision , in particular it had failed to expose why it had not considered the applicants’ submissions .", "On DATE ORG rejected the applicants’ appeal without holding a hearing .", "On DATE ORG quashed this decision and remitted the case again to ORG . It held inter alia that the latter had not sufficiently justified why it had not examined the applicants’ offers of proof , even it might have been troublesome to deal with each of the offers of proof ( “ auch wenn es mühselig ist ( ... ) , sich mit jedem PERSON auseinanderzusetzen ” ) . It observed moreover that the decision of ORG not to hold a hearing without informing the parties was not in conformity with the procedural requirements .", "On DATE a hearing was held in the resumed proceedings before ORG during which the applicants filed CARDINAL requests for the taking of evidence . The GPE reduced the amount to be paid by the applicants to ORG ORG and the parties declared the case settled in respect of the amount in excess ( ORG ) . On DATE ORG discontinued the proceedings as to the amount exceeding DEM CARDINAL,CARDINAL.CARDINAL and dismissed the ORG complaint as to the remainder .", "On DATE ORG rejected the ORG request for leave to appeal on points of law .", "On DATE the applicants lodged a constitutional complaint and argued inter alia that the length of proceedings had been excessive .", "On DATE ORG , sitting as a panel of CARDINAL judges , refused to admit the constitutional complaint without giving any reasons . The decision was served on the ORG representative on DATE .", "Section CARDINAL of the Code of Administrative Court Procedures ( Verwaltungsgerichtsordnung ) provides inter alia that an application to set aside an order ( ORG ) can be lodged with ORG if the administrative authorities fail without sufficient justification to decide upon the administrative appeal against this order within a reasonable time - limit , in general DATE .", "LAW ( Baugesetzbuch ) establishes inter alia that infrastructure development shall be the task of the Municipality ( Section CARDINAL ) but that the latter may assign the infrastructure development to a third party by agreement ( Section CARDINAL ) . Furthermore , the GPE shall charge an infrastructure contribution to cover the costs for the infrastructure facilities not otherwise covered ( Section CARDINAL ) but it shall assume CARDINAL % of the infrastructure expenditures subject to contribution ( Section CARDINAL ) ." ]

[ "6" ]

[ "6-1" ]

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[ "S. is a mason and lives in GPE .", "In DATE a protest movement broke out in the town of GPE ( GPE of GPE ) directed against the sale of nuclear power stations to a NORP country then under a military regime . It continued in DATE in the form of demonstrations against the holding of an international arms fair , and writing graffiti and occupying buildings as a protest against the housing shortage . In DATE and DATE there was a series of cases of arson and attacks using explosives , causing damage to several public and private buildings including the house of PERSON , who was then a ORG Minister ( Bundesrat ) and head of ORG and Police .", "On DATE the GPE police set up a special unit with the task of co - ordinating the hunt for those responsible for these crimes . It shadowed the members , tapped the telephones and regularly emptied the dustbins of a commune which was thought to be sheltering the criminals .", "On DATE , the police arrested CARDINAL persons and seized numerous documents at the same time . CARDINAL of these persons were released again on DATE . The others were detained in solitary confinement , without being able to correspond freely with their lawyers , and each was the subject of a separate procedure .", "S. was suspected of being involved in the above - mentioned crimes . He was arrested at his home in GPE on DATE but succeeded in escaping . He was arrested again on DATE and charged with the use of explosives in connection with the attack on PERSON house .", "On DATE ORG ( Bundesanwalt ) sent the GPE authorities various documents implicating the applicant . On DATE he was questioned by members of ORG on the accusations against him , but exercised his right to silence .", "The investigation became the responsibility of the GPE ORG ( PERSON ) on CARDINAL DATE , and PERSON was taken to GPE prison .", "After questioning him on DATE the District Attorney ( GPE ) accused him of having caused an explosion at Mr PERSON ’s house and started a fire at a civil defence centre . He again remanded him in custody on the grounds of the risk of flight and of collusion with his co - accused . On DATE he further accused him of arson at CARDINAL rifle ranges , flooding business LOC and criminal damage to property by means of graffiti . According to S. ’s lawyer all these charges were based on graphological reports which had been drawn up on the basis of documents seized by the police on DATE ( see paragraph CARDINAL above ) .", "On DATE the GPE authorities sent the GPE ORG the results of their investigations .", "In DATE the applicant had asked his mother to ask PERSON , the lawyer representing CARDINAL of the other accused , PERSON , to take on his defence too . Mr PERSON declined to do this and on CARDINAL DATE S. instructed PERSON . On DATE the President of ORG ( Anklagekammer ) of ORG ( ORG ) designated him as court - appointed defence counsel with retrospective effect from DATE", "On DATE , while still in custody in GPE , the applicant had been able to confer freely with PERSON for TIME . From CARDINAL May , on the other hand , visits took place under the supervision of a police official . CARDINAL of the applicant ’s letters to his lawyer , dated CARDINAL , DATE and DATE May , were intercepted and were later used for the purpose of graphological reports .", "After being transferred to GPE prison PERSON continued to be subject to surveillance of his correspondence and his lawyer ’s visits . He was , however , able on DATE to have a meeting with no witness present with PERSON , a lawyer who had been approached by his mother to undertake his defence .", "On DATE the applicant spoke with PERSON in the presence of a policeman who took notes and stopped the interview after TIME , on the grounds that they were no longer speaking about the case and he had other business to see to .", "In a letter of CARDINAL DATE the GPE District Attorney informed ORG ( Staatsanwalt ) that he considered these measures necessary in view of the risk that the applicant ’s lawyer might collude with other lawyers or other co - accused . He relied on the second paragraph of LAW ( Strafprozessordnung ) , according to which :", "\" An accused who is held in custody shall be permitted written and oral contact with defence counsel , in so far as the purpose of the investigation is not jeopardised .", "Once his detention has exceeded DATE , an accused must not be refused permission to consult defence counsel freely and without supervision , unless there are special reasons , in particular a danger of collusion . After the close of the investigation , an accused shall have this right without restriction .", "( ... ) . \"", "ORG of ORG gave PERSON ’s lawyer permission on DATE to examine CARDINAL police reports and several transcripts of statements by the co - accused at the registry of the Court , but not to take copies of them . From that date until DATE ( see paragraph CARDINAL below ) Mr Garbade did not have access to any other documents in the case - file .", "There were numerous disputes between the lawyer and those carrying out the surveillance , notably on DATE when the lawyer wanted to give his client several decisions and letters from the District Attorney and a copy of the memorial for the public - law appeal of CARDINAL DATE ( see paragraph CARDINAL below ) . The latter document was seized by the officer and sent to the District Attorney .", "On application by the GPE ORG the President of ORG of ORG extended the applicant ’s detention on remand until DATE , in order to prevent him colluding with his co - accused , who had meanwhile been released , and tampering with evidence .", "In DATE PERSON saw some extracts from the final police report of CARDINAL DATE , but he did not have access to the case - file until DATE .", "On DATE the applicant appealed to ORG of ORG , complaining of the surveillance of the interview of DATE ( see paragraph CARDINAL above ) , and supplemented the appeal on DATE following other visits on CARDINAL and DATE .", "ORG dismissed PERSON ’s appeal on DATE . It pointed out that he was suspected of having committed the crimes in question and said that in view of the complexity and extent of the authorities’ investigation there was a serious risk of collusion ; because the accused had refused to make a statement , it would have been easy for him to tamper with the evidence , as his co - accused had been released , apart from W. He had also kept in close contact with them , and was accused of serious offences which had constituted attacks on public and social order . There was also a risk of unintentional collusion on the part of PERSON in view of his contacts with the lawyers representing the other accused , especially counsel for PERSON As for the conduct of the policeman responsible for surveillance of the interview of CARDINAL DATE ( see paragraph CARDINAL above ) , this could be justified .", "The applicant appealed against this decision to ORG of ORG ; on DATE that court upheld the decision . The court found that a danger that the applicant would collude with his co - accused followed from his refusal to make a statement , and it could be supposed that he would use every effort to make their respective statements agree with each other ( abstimmen ) . PERSON had indeed been able to confer freely with him , but ORG did not find credible Mr PERSON ’s assertions that his contacts with the lawyers representing the other accused were no closer than PERSON ; further , counsel for PERSON had advised LOC Office that the lawyers had all agreed to co - ordinate their strategy .", "The court added :", "\" Acting in such a way is not inadmissible , but it must , however , be compatible with the duty to ascertain the material truth ( ORG der materiellen GPE ) . As the accused represented by PERSON and Mr PERSON are exercising their right to refuse to make any statements , one can not ignore the risk that defence counsel will not only co - ordinate their tactical and legal way of proceeding but may also , intentionally or not , adversely affect the ascertainment of the material truth . In these circumstances , precisely in the case of offences of this type which must be regarded as attacks on public and social order , there are sufficient indications pointing to a danger of collusion in the person of defence counsel . \"", "On DATE the applicant had also challenged a decision by the President of ORG extending his detention on remand . He complained that he had not been able to examine all the documents in the case - file , and that the proceedings had been entirely written . On DATE ORG dismissed the appeal and confirmed the further remand until DATE , on the grounds that there was still a danger of collusion and flight .", "S. then brought CARDINAL public - law appeals before ORG on DATE .", "In the first appeal , which was directed against the decision of DATE ( see paragraph CARDINAL above ) , he relied on Article CARDINAL para . CARDINAL ( b ) in conjunction with LAW CARDINAL ( article CARDINAL - CARDINAL-b , article DATE ) of the Convention . He alleged that the surveillance of the interviews made his right to take proceedings within the meaning of Article CARDINAL para . CARDINAL ( article CARDINAL ) illusory , and that his right to a fair hearing was deprived of substance as regards the review of the lawfulness of his detention on remand ; in particular , the aforesaid surveillance prevented any confidential conversation with his lawyer aimed at refuting the evidence collected during the investigation . Further , he did not have access to the case - file and his lawyer was unable to take a copy of it .", "The second appeal challenged the decisions of DATE and CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL above ) and put forward essentially the same complaints .", "On DATE ORG dismissed the appeal of DATE ( see paragraph CARDINAL above ) . It found inter alia that PERSON , whose task it was to draw up the application for release from detention , had had access to the case file , so that the applicant ’s rights in the proceedings on the extention of his pre - trial detention had not been infringed . The court added that counsel would , at the preparation for trial at the latest , have the right to a copy of the case - file for his client if he asked for this .", "The appeal of CARDINAL DATE ( see paragraph CARDINAL above ) suffered the same fate on DATE . ORG held that only LAW CARDINAL para . CARDINAL ( c ) ( article DATE ) of the Convention ( as interpreted by ORG ) were relevant , and not Article CARDINAL para . CARDINAL ( b ) ( article CARDINAL - CARDINAL-b ) , as the surveillance had not prejudiced preparation for the trial .", "The authorities had not been arbitrary in describing the offences in question as systematic attacks on public and social order . The accused appeared to be extremely dangerous and it was reasonable to suppose that they would have resorted to illegal methods even during the judicial proceedings . Consequently , regardless of Mr Garbade ’s personal qualities , surveillance of his contacts with his client was in accordance with the LAW and LAW .", "In the event of irregular actions on the part of a lawyer , it was in the first place up to the disciplinary authorities to impose penalties on him . A lawyer could intentionally or unintentionally become the accomplice of an accused . This was the case in particular with PERSON , who was in close contact with Mr PERSON , whose client PERSON had been allowed to communicate freely with him . However , the applicant could not claim to be the victim of discrimination , as PERSON had been in custody for much longer and was accused of additional offences .", "The surveillance had not been relaxed in the meantime . The police officer in charge of it had drawn up reports on DATE , DATE , DATE and DATE ; these were subsequently added to the case - file . It was apparent from the first report that PERSON had had to show him the documents he was studying with his client .", "In a letter of CARDINAL DATE the GPE ORG had informed ORG that the surveillance was aimed at eliminating all risk of collusion ; he considered , however , that it was unlikely that a conversation listened to could be used in evidence against S. in any way .", "On DATE the GPE District Attorney notified PERSON that he would end the surveillance as soon as he had heard the applicant ’s statement on the accusations brought against him . Mr PERSON replied that PERSON would refuse to make any statement as long as the surveillance continued .", "The surveillance of visits and correspondence was ended on DATE following an interrogation lasting DATE . On that occasion the District Attorney asked the applicant to make a statement , but he exercised his right to silence . After this he was able to confer with his counsel in the prison library with no glass screen or any other restriction .", "On DATE the applicant had brought an appeal inter alia against the surveillance of visits and the fact that he was not allowed to consult the case - file .", "On DATE ORG of ORG had adjourned a decision on the first point , on the grounds that LOC ORG was about to discontinue the surveillance . On the second point the court had found that PERSON was still suspected of the offences in question and the length of the investigation was caused by his insistence on remaining silent .", "On DATE the court found that the complaint on which it had adjourned a decision on DATE was no longer a live issue now that the surveillance measures had ended ( see paragraph CARDINAL above ) . In order to decide whether the applicant was liable for costs or was entitled to damages , it assessed what chances of success the appeal would have had if the surveillance had continued . It noted that the circumstances referred to in ORG decision of CARDINAL DATE ( see paragraph CARDINAL above ) had not changed by DATE , the date of the appeal , and the restrictions on free communication between the applicant and his lawyer thus remained justified ; it therefore did not award him any pecuniary compensation .", "S. appealed against this decision to ORG of ORG , which upheld the decision on DATE , again on the grounds that the appeal of DATE would probably have failed .", "S. finally brought a public - law appeal on CARDINAL DATE . ORG dismissed it on CARDINAL DATE . Restricting itself to examining whether the refusal to award compensation was tainted by arbitrariness , it found that there had been a danger of collusion and in essence approved the findings of ORG ( see paragraph CARDINAL above ) .", "In a report drawn up for the GPE ORG on CARDINAL DATE , the GPE police had expressed the opinion that some of the anonymous letters which had been sent shortly after the offences in question undoubtedly came from the applicant .", "The final interrogation took place on DATE . According to the record , PERSON refused to answer the accusations brought against him , and his lawyer attributed those accusations to the fact that his client was thought to have anarchist opinions .", "The GPE ORG ’s final report ( ORG ) of CARDINAL DATE , comprising CARDINAL pages , accused the applicant of CARDINAL offences and attempted offences of arson , participation in CARDINAL attacks with explosives , various thefts and offences of criminal damage , including damage to a railway line ; the damage amounted to MONEY . The report was forwarded to ORG .", "On DATE , DATE and CARDINAL DATE the applicant made unsuccessful requests to ORG to reopen the investigation . He applied again on DATE .", "In accordance with paragraph CARDINAL ( c ) of LAW a of FAC he left it to ORG to decide which court would try him . The ORG decided to commit him for trial by ORG rather than ORG ( Geschworenengericht ) , as it considered that his interests would be better protected in that way , especially with regard to his youth .", "The trial was due to start on DATE but the applicant did not appear . ORG therefore adjourned the hearing .", "A fresh hearing took place on DATE , in the absence , for which no reason had been given , of S. who had been provisionally released on DATE . ORG found him guilty inter alia of manufacturing explosives , arson , theft and criminal damage and sentenced him to DATE imprisonment - DATE spent in custody on remand being deducted - and to payment of costs and expenses .", "The applicant appealed . A new trial took place on DATE , again in his absence . After hearing his counsel and the representative of ORG , ORG upheld its judgment of DATE . He appealed to ORG of the GPE of GPE , and enforcement of the judgment was suspended by the appeal ." ]

[ "6" ]

[ "6-3" ]

[ "6-3-c" ]

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[ "The applicant was born in GPE , GPE , in DATE . He currently resides in PERSON , the LOC .", "In DATE the applicant was convicted of attempted rape . However , he was exempted from serving his sentence on the grounds of diminished responsibility and underwent compulsory medical treatment in a psychiatric hospital from DATE .", "On DATE the applicant again attempted to commit rape .", "On DATE the Zheleznodorozhny ORG of PERSON ( the “ PERSON Court ” ) ordered the applicant to undergo compulsory medical treatment in a psychiatric hospital under close supervision . This decision was not appealed and became final . He was detained in ORG .", "On DATE the psychiatric commission recommended that the applicant be transferred to a hospital with strict supervision ( a higher level than the previous one ) .", "On DATE the Krasnogvardejsky ORG of Dnepropetrovsk allowed the petition lodged by the chief psychiatrist of ORG . It quashed the decision of CARDINAL DATE , but decided that the applicant should continue to undergo compulsory medical treatment under close supervision . This resolution was not appealed and became final .", "From DATE to DATE the applicant remained in detention in ORG under close supervision .", "From DATE until DATE the applicant was under compulsory medical treatment with close supervision in ORG ( the “ CRPH ” ) .", "On DATE the CRPH lodged a request with ORG that the applicant ’s regime be reduced to ordinary supervision .", "On DATE ORG decided that the applicant should be placed under ordinary supervision in the psychiatric hospital since his behaviour had improved .", "On DATE the ORG refused an application by the Chief Psychiatrist of ORG ( the “ Chief Psychiatrist ” ) , based on a medical report dated DATE , to terminate the applicant ’s compulsory medical treatment since his state of health had improved . In particular , it referred to the gravity of the offence committed by the applicant .", "On DATE the applicant ’s lawyer lodged a cassation appeal with ORG . On DATE this court upheld the decision of CARDINAL DATE . In particular , it ruled that the requests for release were unsubstantiated as the applicant had not fully recovered from his mental illness .", "On DATE ORG rejected a further application by the Chief Psychiatrist lodged on the basis of the conclusions of the applicant ’s medical examination on DATE , as being unsubstantiated .", "On DATE , the applicant ’s lawyer lodged an appeal in cassation with ORG . On DATE the court upheld the decision .", "On DATE the Chief Psychiatrist lodged another application with ORG of PERSON ( the “ ORG ” ) seeking to quash the compulsory medical treatment of the applicant and to transfer him to a regime of ordinary supervision . On DATE ORG rejected this application for lack of substantiation and , on DATE , ORG of the LOC upheld that decision .", "On DATE the psychiatrist of the CRPH lodged an application with the ORG seeking to quash the compulsory medical treatment imposed on the applicant . He also requested that the court order the applicant ’s transfer to an ordinary supervisory regime . On DATE ORG rejected this application as unsubstantiated . In particular , it noted the gravity of the crime committed by the applicant and the fact that he was a repetitive offender . The court further held that the conclusions of the medical commission were insufficient to quash the compulsory treatment measure .", "On DATE the Head of ORG lodged an application with ORG , seeking to end the compulsory medical treatment of the applicant and to transfer him to a regime of ordinary supervision .", "On DATE ORG allowed the application and decided that treatment could be given to the applicant under ordinary supervision , since his state of health had improved . The resolution of DATE was not appealed and became final .", "The applicant was released from the psychiatric hospital on DATE .", "The relevant provisions of LAW read as follows :", "“ Human and ORG rights and freedoms are protected by the courts .", "Everyone is guaranteed the right to challenge in court the decisions , actions or omissions of bodies of ORG power , bodies of local self - government , officials and officers . ...", "Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law . ”", "The relevant provisions of LAW read as follows :", "“ ... CARDINAL . NORP A person , who , during the commission of an act generally deemed to be dangerous by the present Code , was not criminally responsible , that is , not able to account for himself or his own actions ( omissions ) as a consequence of chronic mental illness , temporary disturbance of mental activity , feeble - mindedness , or other mental disorder , shall not be liable to criminal sanctions . ... ”", "“ CARDINAL . A person deemed by a court to be of diminished responsibility , so that , at the time of committing an offence , he was not fully capable of accounting for and controlling his own actions ( or omissions ) as a consequence of a mental disorder ... , shall be subject to criminal sanctions .", "NORP The fact that a person has been held to be of diminished responsibility shall be taken into account by a court when deciding on the imposition of a penalty and may be a ground for the application of compulsory measures of a medical character . ”", "“ CARDINAL . A person who has committed a crime shall be exempted from criminal responsibility in the instances provided for by the present Code , and also on the basis of an amnesty law ... or a pardon .", "Exemption from criminal responsibility in the instances provided for by the present Code shall be ordered exclusively by a court . The procedure for exemption from criminal responsibility shall be established by law . ”", "“ Compulsory measures of a medical character shall be : the provision of outpatient psychiatric assistance ; the placement of a person who has committed a socially dangerous act , falling within the scope of the Special Part of the present Code , in a specialised institution for the purpose of compulsory treatment , and the prevention of the commission of socially dangerous acts by a person . ”", "“ Compulsory measures of a medical character may be applied by a court to persons who have", "... ( CARDINAL ) committed offences in a state of diminished responsibility ; ... ”", "“ CARDINAL . Depending on the character and gravity of the illness , the gravity of the act committed , and taking into account the degree of danger a mentally ill person presents to himself or to other persons , a court may apply the following measures of a medical character :", "( CARDINAL ) NORP compulsory provision of outpatient psychiatric assistance ;", "( CARDINAL ) hospitalisation in a psychiatric institution under ordinary observation ;", "( CARDINAL ) hospitalisation in a psychiatric institution under close observation ;", "( CARDINAL ) hospitalisation in a psychiatric institution under strict observation .", "Compulsory provision of outpatient psychiatric assistance may be ordered by a court with respect to a person suffering from a mental disorder who has committed a socially dangerous act if the person , by reason of his mental state , does not require confinement in a psychiatric institution .", "Hospitalisation in a psychiatric institution under ordinary observation may be ordered by a court with respect to a mentally ill person who , on account of his mental state and the nature of the socially dangerous act committed , requires confinement and compulsory treatment .", "Hospitalisation in a psychiatric institution under close observation may be ordered by a court with respect to a mentally ill person who committed a socially dangerous act not connected with an attempt on the life of other persons and who , on account of his mental state , does not represent a threat to society but requires confinement in a psychiatric institution and treatment under conditions of close observation .", "Hospitalisation in a psychiatric institution under strict observation may be ordered by a court with respect to a mentally ill person who has committed a socially dangerous act connected with an attempt on the life of other persons , and also with respect to a mentally ill person who , on account of his mental state and the nature of the socially dangerous acts committed , represents a special danger to society and requires confinement in a psychiatric institution and treatment under conditions of strict observation .", "If the application of compulsory measures of a medical character to a mentally ill person is not deemed to be necessary , and , likewise , in the event of the termination of the application of such measures , a court may place him in the care of relatives or guardians under compulsory medical observation . ”", "“ CARDINAL . The extension , modification or termination of the application of compulsory measures of a medical character shall be ordered by a court upon an application by a representative of the institution ( or a psychiatrist ) providing the treatment , to which application shall be appended the opinion of a commission of psychiatrists substantiating the need to extend , modify or terminate the application of such compulsory measures .", "Persons subject to compulsory measures of a medical character shall be examined by a commission of psychiatrists not less than once DATE in order to decide whether there are grounds for applying to a court to terminate or modify the application of such measures . If there are no grounds for terminating or modifying the application of a compulsory measure of a medical character , the representative of the institution ( or the psychiatrist ) rendering psychiatric assistance to the person shall send to the court an application , to which shall be appended the opinion of the commission of psychiatrists substantiating the need to extend the compulsory measures . If it is necessary to extend the application of a compulsory measure of a medical character for DATE , the representative of the [ competent ] institution ( or the psychiatrist ) ... must apply to the court in the place where the institution is located for that extension . To the application shall be appended the opinion of the commission of psychiatrists substantiating the need to continue the provision of psychiatric assistance to the person . Thereafter , the application of a compulsory measure of a medical character shall be extended each time for a term which may not exceed DATE .", "NORP If the application of compulsory measures of a medical character is terminated because of an improvement in the person ’s mental state , a court may transfer him to the care of relatives or guardians under compulsory medical observation . ”", "“ CARDINAL . Compulsory treatment may be ordered by a court irrespective of the sentence given to persons who have committed crimes and suffer from an illness representing a danger to the health of other persons .", "NORP If the sentence takes the form of a deprivation or limitation of liberty , compulsory medical treatment shall be provided at the place where the sentence is being served . If other types of penalties are imposed , compulsory treatment shall be provided in specialised institutions . ”", "The prolongation or termination of the compulsory medical treatment of internees in mental hospitals , in the period from DATE to DATE , were regulated by the NORP legislation in force at the material time ( the Decree of the Verkhovna Rada of GPE of CARDINAL DATE “ on the temporary operation of certain legislative acts of the GPE in the territory of GPE ” ) .", "Under LAW DATE of the ORG of ORG GPE that approved the Regulation “ on the conditions and procedure for providing psychiatric medical assistance ” , and LAW No . CARDINAL of ORG of the GPE which approved a Temporary Instruction “ on the procedure for applying compulsory medical treatment to mentally ill persons who have committed socially dangerous acts ” , such compulsory patients were , in practice , unable to have any judicial review of the lawfulness of their detention instituted on their own initiative . However , the head of the competent psychiatric hospital was obliged to lodge a request for the prolongation or termination of the compulsory psychiatric treatment within DATE from the date of the examination of the internee by a medical commission recommending that approach ( paragraph CARDINAL of LAW ) . The commission had to review the state of health of the internees DATE ( paragraph CARDINAL of LAW ) .", "Since ORG ( paragraph CARDINAL below ) , the NORP domestic law provides for frequent judicial review of the ORG continued detention , DATE , on the initiative of the responsible medical officers . Extracts of the relevant legislation are reproduced below .", "The relevant extracts from the provisions of ORG read as follows :", "“ Measures of compulsory medical treatment shall be applied by a court decision in accordance with the procedure laid down in LAW , LAW , this law and other laws .", "In accordance with the decision of the court , the following measures of compulsory medical treatment may be applied :", "( CARDINAL ) NORP compulsory provision of outpatient psychiatric assistance ;", "( CARDINAL ) hospitalisation in a psychiatric institution under ordinary supervision ;", "( CARDINAL ) hospitalisation in a psychiatric institution under close supervision ;", "( CARDINAL ) hospitalisation in a psychiatric hospital under strict supervision .", "Continuation , modification or termination of the compulsory medical treatment shall be ordered by the court on the basis of an application by a representative ( psychiatrist ) of the psychiatric hospital that provides medical treatment to the person .", "Persons subject to measures of compulsory medical treatment shall be examined by a commission of psychiatrists not less than once DATE to determine whether there are grounds for applying to the court to terminate or modify the application of such measures . If there are no grounds for [ such ] termination or modification ... , the representative of the psychiatric institution ... shall send the court an application , to which shall be appended an opinion of the commission of psychiatrists substantiating the need to continue the application of the compulsory measures ... If it is necessary to continue the application of the measures of compulsory medical treatment for DATE , the representative of the psychiatric institution ... shall apply to the court in the place where the psychiatric institution is located to continue the compulsory measures . The application shall be supplemented with the conclusions on the patient ’s examination by the psychiatrists who consider it necessary to continue the application of such measures . Thereafter , the application of such measures may be extended for a term that may not exceed DATE .", "A decision whether to modify or terminate the application of compulsory measures of medical treatment shall be given by the court if there is a change in the state of health of the person which necessitates a change in the applicable measures . ”", "“ An assessment of the person ’s mental state ( including medico - social assessments of any loss of the ability to work , military medical examination , etc . ) shall be conducted on the basis of , and in accordance with , the procedure established by legislation and other legal instruments adopted in accordance with legislation . ”", "“ Psychiatric examinations in administrative , criminal and civil cases shall be ordered and conducted on the basis and in the manner prescribed by law . ”", "The relevant extracts from the provisions of LAW read as follows :", "“ The compulsory measures of medical treatment , laid down in LAW , shall be applied to those persons specified in LAW .", "The compulsory measures of medical treatment shall be applicable only to persons who are socially dangerous . ”", "“ Termination or modification of compulsory measures of medical treatment may take place only on the basis of a ruling by the court or a resolution of the judge who applied these measures , or by the court at the place where treatment is provided .", "Termination or modification of the applicable compulsory measures of medical treatment may take place [ regarding ] a person who committed a socially dangerous act ... if , as a result of changes in his state of health , the need to apply the ... measures ... has disappeared .", "Consideration of whether to apply the compulsory measures of medical treatment shall be conducted in accordance with LAW on an application by the chief psychiatrist of the health - protection body that is supervising the relevant medical institution where the person concerned is held . The conclusion of the commission of psychiatrists shall be attached to the application . ”", "“ An appeal or cassation appeal or an appellate or cassation petition by the prosecutor ( апеляційне чи касаційне подання прокурора ) against the ruling or resolution adopted by a judge or a court in the manner laid down by this LAW , shall be introduced in the ordinary manner . ”", "The relevant extracts from the provisions of Decree no . CARDINAL of ORG read as follows :", "“ ... CARDINAL . If there is a substantial improvement in the state of a person ’s mental health , or if he recovers , or if the results of a psychiatric examination reveal doubts as to the existence of the mental illness , the commission of psychiatrists of the relevant institution shall issue conclusions to that effect , that shall be sent by the director of the psychiatric hospital , before the end of the DATE term , to the court that delivered a decision in the case , for consideration in its review in accordance with the applicable legislation .", "The continuation , modification or termination of the applicable compulsory measures of medical treatment shall be ordered by the court on an application by the representative of the psychiatric hospital ... that provides medical treatment to the person . ...", "NORP ... the application of the psychiatrist shall be sent to the court , together with the record of psychiatric examinations , not later than ten days from the adoption of the relevant court decision .... ”", "The relevant extracts from the instruction of ORG provide as follows :", "“ CARDINAL . The compulsory measures of medical treatment , provided for by legislation shall be applied on the basis of a ruling by a court or a resolution of a judge to persons with mental illnesses who have committed socially dangerous acts ( hereinafter – persons ) , and shall be implemented by the health protection institutions . ...", "Compulsory measures of medical treatment shall be applied where it is established that a mentally ill person constitutes a danger to society , on the basis of :", "( CARDINAL ) legal criteria - the fact of committing a socially dangerous act , specified by the criminal legislation ; and", "( CARDINAL ) medical criteria - the presence in a person of a mental illness that precludes the person ’s ability to understand his actions and to control them at the time at which the case is considered on its merits .", "In the absence of CARDINAL of the above criteria , the imposition of compulsory measures of medical treatment shall not be possible . ...", "Issues pertaining to the continuation , modification or termination of the application of compulsory measures of medical treatment shall be decided by a court on an application by a representative of the relevant psychiatric institution , to which the substantiated conclusions of the commission of doctors shall be attached . ...", "The termination or modification of compulsory measures of medical treatment may be ordered on the basis of information as to positive changes in a person ’s mental state or the person ’s recovery , as reflected in the “ Record of Psychiatric Examination ” , as a result of which the danger of the person to society has decreased or disappeared , and there is no longer any need to keep and treat him in a psychiatric institution . The final decision shall be taken by the court .", "The gradual annulment of a compulsory measure by way of a change from a stricter measure to a lighter one shall not be necessary . ... ”" ]

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[ "The applicants are CARDINAL housing associations . Their names are set in the appendix to this decision . They are represented before the ORG by PERSON N. PERSON and PERSON , both lawyers practising in GPE .", "The facts of the case , as submitted by the applicant associations , may be summarised as follows .", "The aim of the applicant associations is to construct and renovate housing for renting purposes on a non - profit - making basis . Their profits are used for financing the construction of new housing or for the renovation of existing housing . In the field of public housing in the GPE , associations like the applicants hold a prominent place in that they provide good standard housing at a relatively low cost on a large scale . ORG provides financial support to housing associations by , inter alia , subsidising their public housing construction projects .", "On DATE , the Order on Financial Support for Rented Housing ( PERSON geldelijke steun huurwoningen – the “ ORG ” ) , as published in the Bulletin of Acts and Decrees ( Staatsblad ) DATE , CARDINAL , entered into force . In the ORG , the ORG Secretary for ORG , PERSON en Milieubeheer – “ the ORG Secretary ” ) introduced a financing system for subsidised public housing , i.e. the so - called “ dynamic cost price ” ( “ DCP ” ) method , in combination with a scheme where financing takes place by way of loans geared to the subsidies granted .", "Under the ORG , the ORG Secretary may , in a decision granting a subsidy for a total duration of DATE for a housing construction project , stipulate that such a loan is a ORG loan ( rijkslening ) or direct the housing association concerned to the private capital market for a loan . Both the ORG and capital market loans were endowment loans ( klimleningen ) , i.e. loans in which the loaned capital sum initially increases by adding part of the interest to the loaned sum , whereas actual repayment only starts after DATE . The idea is that the repayment of the loan is financed in part by presumed rent increases . The calculation of the DCP was based on the principle that during the total exploitation period of a dwelling , which was set at DATE , the revenues would cover the standardised costs . To this end a “ cost price rent ” was determined , indicating what amount would be required DATE given the interest on and repayment of the loan – to meet this objective , as well as a hypothetical development of rent payments and exploitation costs during the entire period of exploitation . The DCP rent was not DATE determined , but calculated on the basis of the total standardised costs over the entire period of exploitation . On the assumption that rents would increase in the future , the DATE rent would be low during the initial exploitation period . As a consequence of this form of calculation , during the first DATE of exploitation , the annual exploitation costs exceeded the revenue , thus creating a liquidity and exploitation deficit which required the house owners to contract a loan . Hence , endowment loans were developed . The initial liquidity deficit would be added annually to the balance sheet value of the dwelling concerned . In DATE of exploitation , the rents would have increased to such a level that the accrued debt could be repaid rapidly . In comparison to previous subsidy methods , the advantage of this system was that at a constant rent level , a lower ORG contribution to the costs sufficed . The characteristic feature of the system under the ORG was that the initial subsidy would be low , subsidy costs in principle being projected to the future by anticipating future rent increases . The DCP rent was calculated in principle for DATE period and a subsidy was awarded for the whole period with a review of the cost price rent DATE , following a possible adjustment of the set parameter values .", "The construction of public housing was initially solely financed by ORG loans but , for budgetary reasons , the ORG Secretary directed housing associations as from DATE more and more often towards the private market . The housing associations considered that their aims would be put in jeopardy with this tendency towards private loans unless the conditions for capital market loans were eased .", "On the basis of assurances given by the ORG Secretary to ORG ( ORG ) of ORG that this method of financing would not have negative financial consequences for the tenants concerned , if necessary with extra ORG subsidies being provided , the housing associations started to make investments with capital market loans . A situation thus developed in which public housing building projects were financed by both private and ORG loans , and were subsidised for a total duration of DATE in accordance with the DCP method . During DATE period of exploitation , the subsidy for all public housing was calculated in the same manner . As a result of the application of the DCP method , the ORG could limit itself to relatively low subsidies during DATE of exploitation .", "In DATE , the then Government felt that it was no longer desirable that subsidy costs be projected in the future and decided to neutralise this feature by removing the dynamic character of the cost price rent . This implied that the rent parameter was set at PERCENT , which would result in an increase in the subsidy level . This proved to be easier in cases concerning ORG loans than in those concerning capital market loans . As to the latter category , the removal of the dynamic character was still not fully implemented by DATE . The ORG Secretary blamed this on the uncooperative attitude of the private lenders who refused to amend the terms of the housing association loans in accordance with the terms unilaterally prescribed by the ORG Secretary .", "The housing associations considered that the ORG Secretary had failed to appreciate that the private lenders had no objection to increased ORG subsidies , thereby implementing the removal of the DCP element for this form of rented accommodation .", "The ORG Secretary eventually decided , as regards DATE subsidy period , to remove the dynamic character of the cost price rent for all public housing , with the exception of such housing financed by the private market . To this end , the ORG Secretary issued ORG geldelijke steun huurwoningen – the “ OR ” ) , as published in the Bulletin of Acts and Decrees DATE , CARDINAL , which entered into force on DATE .", "Under the OR , the rent parameter for dwellings financed by ORG loans was set at PERCENT , whereas the dynamic parameter for dwellings financed by the private market was set at PERCENT . As regards the latter housing category , the ORG Secretary could limit himself to a considerably lower subsidy level , as it was assumed that the rent revenues would increase with the passage of time . In practice , however , the PERCENT rent increase was not attained , which created considerable financial difficulties for some of the housing associations . In addition and contrary to previous assurances given by the ORG Secretary – upon which the housing associations had based their investment policies – the level of subsidies in respect of social housing financed by the private market was considerably lower than that financed by ORG loans .", "In unsuccessful administrative proceedings instituted on DATE , the tenth applicant association ( see PERSON ) argued inter alia that the rules set out in the OR as to this financing system were contrary to the principle of equal treatment . On appeal , ORG ( Afdeling Bestuursrechtspraak ) of ORG held , on DATE , that it had not been established that the ORG Secretary had given any undertakings about the removal of the dynamic factor concerning privately financed public housing . Insofar as the ORG Secretary had undertaken to compensate the higher costs of private financing , ORG considered that this undertaking had been respected as the housing associations , including the tenth applicant , had been compensated by extra subsidies . It further rejected the argument that the principle of equal treatment had been violated . It held that ORG and private financing systems were not comparable and that all mixed stock housing associations had met with the same treatment .", "In the meantime , on DATE , the LAW of CARDINAL DATE on the Removal from ORG ( PERSON geldelijke steun volkshuisvesting – “ the LAW ” ) had entered into force . The aim of this LAW was to redeem the long term subsidy commitments for public housing in one go by offsetting in the balance sheet of housing associations the net cash value of the ORG ’s outstanding subsidy commitments to housing associations against unpaid ORG loans . For the determination of the net cash value amount for public housing financed by private loans , a dynamic rent parameter was to be applied . This was not the case for public housing financed by ORG loans . According to the applicant associations , a disadvantageous and unequal treatment under the OR was thereby perpetuated in respect of housing financed by the private sector for the remaining DATE subsidy periods ( CARDINAL in all ) .", "Prior to the adoption of the LAW , the applicant associations attempted to challenge these matters by way of a petition ( rekest ) on DATE to ORG for an advisory opinion on the then draft legislation . In their petition , the applicant associations argued inter alia that the redemption arrangement set out in the Draft Bill was in violation of property rights and constituted unjustified unequal treatment . ORG acknowledged receipt of the petition but , in its advice to the Government on the Draft Bill , it did not explicitly address the issues raised by the applicant associations . According to the applicant associations , the negative consequences of the redemption arrangement were also insufficiently understood in the subsequent discussions in ORG .", "DATE , the Minister of Housing , Town and Country Planning and Environment ( Minister PERSON , PERSON en Milieubeheer – “ the Minister ” ) issued the first decisions within the meaning of LAW to all the applicant associations . With the exception of the eleventh applicant association ( see PERSON ) , the applicant associations filed a joint objection against these decisions with the Minister . The Minister rejected their objection on CARDINAL DATE . The applicant associations then appealed to ORG on DATE .", "In its decision of DATE , ORG dismissed the appeal . This decision , insofar as relevant , states :", "“ ORG considers that it appears from the drafting history of the LAW that it intends to set off existing subsidy commitments of the ORG towards < housing associations > against outstanding ORG loans held by these institutions . These commitments encompass DATE financial contributions still to be paid and lump sums for the construction of new housing and for < housing > improvement on the basis of subsidy arrangements prior to DATE . The setting off of commitments against payment claims is being described as ‘ the removal from the balance PERSON balansverkorting ) . The aim of this is to attain further independence for the leasehold sector , control over public expenses and sound rent development . In the calculation of the present DATE contribution , account is being taken of the starting - points of variable exploitation costs , rent development and interest . The Act sets parameters on the basis of which this series of DATE contributions is calculated beforehand . It appears from LAW ( c ) of the LAW that the parameter for the annual rent increase is dependent on the form of financing the housing . This implies that , as regards housing financed by capital market loans , the dynamic cost price method remains in force , whereas for housing financed by ORG loans the rent parameter is set at CARDINAL . This difference has in any event already come about with the entry into force of LAW on financial support for rented housing .", "As from DATE ( the reference date ) , the series of DATE contributions and < other financial > contributions for the construction of new housing and for < housing > improvement , on the basis of subsidy arrangements prior to DATE that were still to be paid , were rendered payable in cash at once . Furthermore , on the reference date the outstanding loans were rendered redeemable .", "As regards the appellants’ objections against the difference made in the LAW in the calculation of the cash value ... between the parameters for housing financed by ORG loans and for housing financed by capital market loans , ORG finds that these objections are primarily aimed against the LAW as such , which is a statute ( wet in formele zin ) .", "Pursuant to LAW ( PERSON ) , the judge can not examine the constitutionality of statutes and treaties . Having regard to LAW , no appeal lies against the LAW , it being a general , binding rule . The reasonableness and equity of the LAW can not , therefore , be examined by the judge . This is not altered by the fact that the LAW is a continuation of the policy already set out in LAW on financial support for rented housing . Neither can the compatibility of the LAW with the general principles of proper administration ( algemene beginselen van behoorlijk bestuur ) be examined .", "In this connection , the appellants have argued that the lack of a possibility to subject the lawfulness of a statute to judicial review is contrary to LAW . ... As to this argument , ORG considers that it follows from this provision < of ORG , for cases referred to in this provision , must guarantee access to an independent and impartial tribunal without , however , setting criteria on the basis of which the matter in dispute must be examined . Already for this reason it can not be deduced from this provision that the absence of a possibility to examine the lawfulness of the LAW , as such , is incompatible with the right set forth in < LAW Since the law provides for the possibility to submit disputes like the present one to ORG of ORG , no violation of LAW arises .", "Insofar as the appellants have submitted that the LAW is contrary to < LAW Protocol No . CARDINAL > , ORG considers as follows . ...", "In the opinion of ORG it can not be successfully maintained that the change in payment of < financial > contributions to be provided by the ORG in connection with the financing of housing owned by the appellants entails a violation of LAW No . CARDINAL to the Convention . In reaching this conclusion , account has been taken of the fact that , with the introduction of the LAW , the ownership rights in the housing and the entitlement to ORG contributions have not , as such , been affected or limited . The LAW merely brought about a change in the payment of ORG contributions , namely , instead of DATE contributions to the appellants , the cash value of those contributions is paid after these have been set off against the obligations < arising out of loans contracted>. In the calculation of the value of the DATE contributions , an DATE rent increase of PERCENT is assumed , whereas under the system of DATE payment of the contributions , in force until DATE , those increases for the appellants’ housing stock at issue were set at PERCENT .", "There is also no violation of the prohibition on discrimination as set forth in ... LAW The LAW is applicable to various sorts of housing belonging to those institutions indicated in LAW prior to DATE , including housing associations . It is true that in LAW different parameters are used for different housing complexes , but this difference is linked to the difference between the regulations under which , at that time , the financial contributions have been awarded for these houses and with the form of their financing . The difference made by the LAW is not an aspect connected to a difference in the nature , trait or characteristic of the beneficiary of the contributions . All < housing associations > are treated equally as regards housing created under the same regulation and financed in the same manner .", "Insofar as the appellants have argued that the LAW should not be applied in their < particular > cases as it violates the general principles of proper administration ... < or > general principles of law ( algemene rechtsbeginselen ) , ORG considers as follows :", "Even assuming that in very exceptional cases the LAW , at least in part , should not be applied on the ground of being contrary to the general principles of law , this does not arise in the present case . In reaching this finding account has been taken of the fact that it does not concern a situation that was not foreseen in the establishment of the LAW . Having regard to the parliamentary consideration of the PERSON which resulted in the LAW , it can not be maintained that ORG was not aware and did not take into consideration the problems now advanced by the appellants . It has moreover not been shown that the – unforeseen – concrete financial situation of the appellants as a consequence of the application of the LAW is so serious that measures should be taken . It follows from the above that a ( subsidiary ) obligation to < award > administrative compensation ( bestuurscompensatie ) < on the basis of equity for negative consequences stemming from acts of ORG , as contended by the appellants , does not arise either . ”", "Since DATE , an unspecified number of applicant associations have received a final decision , within the meaning of LAW , and some of them have filed an objection with the Minister against these decisions , requesting an adjournment pending the outcome of the present application to the ORG .", "The eleventh applicant association received such a final decision on DATE . In its objection filed with the Minister , it requested an adjournment pending the outcome of the present application to the ORG . The Minister granted this request on DATE .", "Under LAW ( Woningwet – “ the LAW ” ) , a municipal council ( gemeenteraad ) may grant recognised institutions , within the meaning of LAW , financial support in order to meet costs incurred or to be incurred by such institutions in the interests of public housing . Costs recognised as such include the exploitation costs of dwellings and their annexes ( LAW of LAW ) . This financial support can be provided by way of awarding DATE contributions ( Article CARDINAL § CARDINALd of LAW ) . Institutions within the meaning of LAW are associations and foundations whose sole aim is to work in the field of public housing without making any payments other than in the interests of public housing .", "The practical implementation of these provisions of LAW were set out in ORG geldelijke steun volkshuisvesting – the “ BGSV ) , as published in the Bulletin of Acts and Decrees ( Staatsblad ) DATE , CARDINAL .", "Under LAW of the PERSON , loans may be granted to municipalities for the purposes set out in LAW by a decision of ORG ( Minister PERSON , PERSON en Milieubeheer – “ the Minister ” ) . Under LAW of the BGSV , municipalities may be awarded DATE grants for the purposes set out in LAW § CARDINALe of LAW . Pursuant to LAW , the Minister is to set further rules on the amounts of those grants .", "These further rules were issued in the DATE Order on Financial Support for Rented Housing ( PERSON geldelijke steun huurwoningen – the “ ORG ” ) , as published in the Bulletin of Acts and Decrees DATE , CARDINAL . According to LAW ORG , the DATE grant for DATE of exploitation of the first term of DATE is the difference between the amount of the dynamic cost price rent at DATE term and the amount of the annual rent , as calculated in accordance with a table set out in GPE I to the ORG . The dynamic cost price rent is the rent calculated at the beginning of the exploitation and after each term of DATE that is necessary DATE under the assumption set out in LAW ORG as to the development of both rents and exploitation costs – to attain with the exploitation , DATE and as a minimum , the revenues envisaged in LAW ORG over the capital invested in DATE ( LAW of the ORG ) . The calculation of the dynamic cost price rent at DATE term and any subsequent term is based on the assumption that , at the beginning of that term , rents are increased DATE by the percentage set out in DATE of ORG ( GPE woonruimte ) . The system for the calculation of the annual contributions after DATE of exploitation were set out in LAW of the ORG .", "According to LAW ( Bulletin of Acts and Decrees DATE , CARDINAL ) , the DATE ORG was withdrawn as of DATE . It was replaced by LAW geldelijke steun DATE the “ OR ” ) . Under the OR , the calculation of the dynamic cost price rent at the beginning of the second DATE term is to be based on an assumed rent increase of PERCENT per year ( LAW .", "In a Circular ( Circulaire ) , published in the Bulletin of Acts and Decrees DATE , CARDINAL , the ORG Secretary set out the policy for subsidising rented housing . This policy entailed the removal of the dynamic character of the exploitation of existing housing . To this end , the determination of the dynamic cost price rent for the second and subsequent DATE terms for housing financed by ORG loans was to be based on an assumed PERCENT increase of both the rent and exploitation costs . The scheme for the payment of the interest and the ORG loan was to be adapted accordingly .", "The aim of this new policy was to attain a situation in which the remaining debt for the new housing would no longer be increased by the passage of time so that DATE given limited inflationary developments – a better balance would be achieved between the balance sheet value and the real value of housing . This also applied for already existing housing . By setting the relevant parameters at CARDINAL , the postponement of costs to the future could be prevented . The ORG Secretary considered it desirable that these costs be covered directly , thus mitigating the long - term autonomous increase of housing project subsidies as a result of previously undertaken commitments . In respect of housing projects that were financed by capital market loans , it had appeared that a mid - term change of agreed loan conditions as to scheduled repayment met with problems from the capital providers , whereas this situation did not arise in the case of housing financed by ORG loans . In these circumstances , it was decided to differentiate between housing financed by ORG loans and other housing .", "Following an agreement reached between the ORG Secretary and representative organisations of housing associations , a PERSON was prepared enabling the setting off of outstanding subsidy commitments against unpaid ORG loans . In this manner , housing associations would have greater possibilities for an independent financial policy , whereas the total housing budget of ORG , Town and Country Planning and Environment would be almost halved .", "On DATE , the resulting Draft Bill on the removal from the balance sheet of financial support for public housing was submitted to ORG for an advisory opinion . ORG issued its advice on DATE . On the basis of its recommendations , certain amendments to the Explanatory Memorandum of the Draft Bill were made . The PERSON was subsequently submitted to ORG for approval .", "On DATE , the Act on the Removal from ORG ( PERSON geldelijke steun volkshuisvesting – “ the DATE LAW ) was adopted . It entered into force on DATE .", "Under the provisions of LAW , the Minister is to determine for each housing association recognised by a municipality the amount of the cash value on DATE of the still outstanding subsidy commitments for their housing stock ( LAW . The procedure for the determination of this cash value is set out in LAW . The Minister initially determines the cash value in a first decision taken on the basis of information already available ( LAW ) . The Minister subsequently requests the housing association and the municipality concerned to submit relevant data and documents required for a second and final determination of the cash value ( LAW ) . This final determination is to be made within DATE of the first decision ( LAW ) .", "Under the provisions of LAW , the dynamic cost price rent calculation is abolished for all categories of subsidised housing , including housing subsidised by ORG loans and by capital market loans . The calculation percentages on which previous subsidy decisions were based are to be respected whereas , for the intended DATE subsidy awards made under the previous system , fixed percentages apply . LAW provides :", "“ For DATE period starting on or after DATE account shall be taken , where financial support has been given in application of the DATE Order on Financial Support for Rented Housing ... , of a dynamic cost price rent ... on the understanding that the calculation thereof starts from :", "a. an DATE increase of the variable exploitation costs by PERCENT ;", "b. a revenue over the invested capital of PERCENT ; and", "c. an DATE rent increase of PERCENT for housing for which , at the time of the award of financial support , a < ORG > loan .... has been provided , and of PERCENT for other housing . ”", "Under LAW , the cash value of the outstanding housing subsidy commitments is to be offset against unpaid ORG loans that have been rendered immediately redeemable in full , thus resulting in a removal of outstanding subsidy commitments from the balance sheet of each housing association ." ]

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[ "NORP The applicant , Mr PERSON , is a NORP national who was born in GPE , GPE in DATE and is currently detained in ORG , PERSON . His application was lodged on DATE . He was represented before the ORG by PERSON of ORG , a lawyer practising in GPE .", "NORP The facts of the case , as submitted by the applicant , may be summarised as follows .", "After obtaining a degree in physics and mathematics from ORG , GPE , the applicant became a mathematics teacher .", "In DATE the applicant was arrested by ORG . He was detained for DATE before being released without charge . During this period of detention he alleges that he was tortured . According to the applicant , he was repeatedly punched in the face and body while bound and blindfolded ; he was knocked unconscious ; he was attached to a wheel and beaten on his face , hands and feet with an electric cable ; he was electrocuted with electrodes attached to his arms and legs ; and he was hung from the ceiling and sexually tortured .", "In DATE the applicant fled GPE . In DATE he arrived in GPE and claimed political asylum . It was accepted that he had a well - founded fear of persecution if returned to GPE and in DATE he was granted Indefinite Leave to Remain in GPE as a refugee .", "On DATE the applicant was arrested at his home . Following a search of the applicant and his home , police officers found a plastic bag containing CARDINAL plastic bottles , each containing a liquid and a solid mixture , a handwritten document in LANGUAGE with diagrams , CARDINAL bags of fertilizer pellets , CARDINAL bags containing small pieces of aluminium foil , an MPCARDINAL audio player , a desktop computer and a ORG memory stick . An analytical chemist confirmed that the contents of the bottles were flammable . Although incapable of causing an explosion , had the applicant used higher grade ingredients , he might have been able to construct a viable bomb . A translation of the NORP document appeared to give instructions on the construction of an improvised explosive device . The audio player and computer devices were found to contain some NORP material of an extremist nature .", "The applicant was interviewed at length by police . He denied trying to make a bomb or that he had a terrorist purpose . He claimed that he was trying to make fireworks for the Eid festival at DATE and that the NORP instructions were for a friend who was going to test the fireworks .", "DATE the applicant stood trial before a judge and jury at ORG . He was charged with CARDINAL count of preparing a terrorist act contrary to LAW . The prosecution case was that the applicant had been trying to make a bomb with the intention of committing an act of terrorism or assisting someone else to do so .", "The applicant did not give evidence . He called a number of witnesses , including Dr PERSON , a consultant psychiatrist who specialised in the treatment of torture victims . PERSON concluded that the applicant was suffering from severe post - traumatic stress disorder and moderately severe depression . His symptoms included severe anxiety , loss of energy , loss of self - esteem , loss of appetite , feelings of guilt , recurrent thoughts of death , frequent angry outbursts , paranoia , difficulty concentrating , persistent flashbacks , vivid memories and recurrent nightmares of his torture . Furthermore , PERSON noted that the applicant had been consistently self - harming whilst in custody at ORG and ORG prisons and during his trial . He had made significant attempts to cut the arteries in his arms . He also had minor lacerations to his forearms and minor scratching to his throat .", "PERSON identified CARDINAL reasons why he considered that it would be undesirable for the applicant to give evidence . First , he believed it likely that the applicant would become so hyper - aroused when being questioned by someone perceived to be hostile that he would lose selfcontrol . Frequent angry outburst during cross - examination by the prosecution could prejudice the jury against him . Secondly , the stress of giving evidence might lead to an inability to concentrate and remember which would impair his ability to answer questions appropriately . This could have a direct impact on the quality of his evidence . Thirdly , the stress of giving evidence would almost inevitably result in an increased risk of significant self - harm .", "Although the applicant had refused to co - operate with PERSON , the consultant psychiatrist instructed by the prosecution , PERSON agreed that the applicant suffered from post - traumatic stress disorder . However , he was unable to form any opinion one way or another about the undesirability of the applicant giving evidence .", "Following the close of evidence , the applicant made an application pursuant to sections CARDINAL(CARDINAL)(b ) and CARDINAL ) of ORG LAW DATE ( “ the DATE LAW ) that the judge should rule that it was undesirable for the applicant to give evidence due to his medical condition and , consequently , that the judge should not direct the jury that they might draw such adverse inferences as appeared proper from the failure of the applicant to give evidence .", "The judge accepted that the applicant suffered from post - traumatic stress disorder , largely as a result of being tortured in GPE , and that he would find it difficult to be questioned by anyone he perceived as hostile . He also accepted that the applicant had been self - harming for some time , and that the stress of giving evidence could well lead to an increased risk of self - harm . Nevertheless he refused the application and held that it was not undesirable for the applicant to give evidence . He did not accept that the applicant ’s presentational problems would seriously prejudice the jury and he did not consider there to be a significant risk that the applicant would forget the basic chemistry or physics which the case involved . Moreover , the judge noted that in view of the importance of the applicant ’s evidence to the case , he could not conclude that his psychiatric problems made it undesirable for him to give evidence , even if it resulted in an increased risk of self - harm .", "The judge noted , however , that it was for the jury to reach a decision as to whether they should draw an adverse inference against the applicant or not . In his summing up , he directed the jury as follows :", "“ The second matter which arises from his silence is that it could count against him . It does n’t have to but it could . This is because you could come to the conclusion that he has not given evidence because he has no answer to the prosecution ’s case , or at least none that would stand up to being tested by cross - examination .", "If you do draw that conclusion against him you must not convict him wholly or mainly on the strength of it . You must look for other evidence of guilt and use his failure to give evidence as some additional support for the prosecution case . It ca n’t stand alone , but it can support something else .", "You should only draw this conclusion against him if you think it is a fair and proper conclusion to draw . If it is not a fair and proper conclusion to draw , then you should not hold his silence against him in any way at all . And before drawing that conclusion against him you must also be satisfied CARDINAL things . The first is that the prosecution ’s case is so strong that it clearly calls for an answer from him . The reasoning is that if the prosecution ’s case is nothing , if you add nothing to it you are still left with nothing , so there has to be a case against him on the prosecution evidence which calls for an answer . The second element is that the only sensible explanation for his silence is that he has no answer to give or at least not one which would stand up to cross - examination .", "In this case the defence suggest that there is a different reason why he has not given evidence , namely , that he has a mental condition which would affect him as a witness if he gave evidence in CARDINAL ways : firstly , that there is a real risk that he would lose his self - control and end up giving a bad impression of himself in the witness box ; secondly , that the stress of giving evidence may mean that he ca n’t concentrate on what he ’s saying , may forget things that he wanted to say . The third element is that the stress of giving evidence would result in an increased risk of him causing harm to himself : self - harming . So there are those CARDINAL strands to the defence explanation , reason , why he has not gone into the witness box .", "I will come back to the detailed evidence about those matters in just a moment or CARDINAL , but if you accept the defence explanation for his not giving evidence and you think that this amounts to a reason why you should not draw any conclusion against him from his silence then do not do so . Otherwise , subject to what I have said , you are entitled to draw a conclusion against him from his silence if you think it is a fair and proper conclusion to draw . ”", "The judge then summarised the medical evidence in some detail for the jury . In the transcript of his summing up , this summary exceeded CARDINAL pages .", "On DATE the jury convicted the applicant and the judge sentenced him to CARDINAL years’ imprisonment . The judge reduced his original sentence of DATE to take account of the applicant ’s serious mental health condition .", "On DATE the applicant was granted leave to appeal against his conviction . On DATE ORG dismissed the appeal . The court noted that :", ", one can see that if the only issue to which his evidence could go was one of very peripheral significance the judge would be entitled to take that into account in concluding that it was undesirable for him to give evidence .", "In the present case reading the judge ’s ruling as a whole , it is perfectly clear to us that the judge ruled that the risk of self - harm was not such in his judgment to make the giving of evidence undesirable and he went on to add that it did not become undesirable because any evidence that the defendant might give would be of insignificant relevance . That approach was , we are satisfied , one which the judge was quite entitled to take .", "We agree with the broad conclusion of PERSON ( as he then was ) in R ( on the application of ORG ) v PERSON . The question posed by section CARDINAL is a wide question for the judgment of the judge . It is plainly not sufficient that the defendant suffers from some ( his and our emphasis ) physical or mental condition ; it must be a mental condition which is such to make it undesirable for him to give evidence . The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so . Many , if not most , difficulties that a defendant or for that matter any other witness may have in giving evidence are things which have to be assessed by the judge of the tribunal of fact - in a ORG trial by the jury . The purpose of section CARDINAL(CARDINAL)(b ) is clearly to enable the judge to remove the possibility of adverse inference from the jury if it is undesirable for the defendant to give evidence . In this case the evidence was by no means all CARDINAL way , even though the factual background abroad was accepted . The judge had ample material on which to reach the conclusion that he did .", "Having reached that conclusion , it remained of course for the jury to decide whether in its judgment it was right to draw any adverse inference against the defendant . No one here can know whether the jury did draw such an inference or not . But what is clear is that the judge left the whole history and all the medical evidence to the jury with punctilious care over CARDINAL pages of summing - up , as he did the possible contra - indications for which the ORG had argued . In other words the question was properly left to the jury . There is not and could not be any criticism of the terms of the summing - up . The question which matters in this appeal , as PERSON has helpfully put it , depends upon whether the judge ’s original ruling was flawed . It was not , we are satisfied , and in those circumstances the appeal against conviction must be dismissed . ”", "ORG held that here was no point of law of general public importance to certify . Consequently , the applicant was refused leave to appeal to ORG .", "Section CARDINAL(CARDINAL ) DATE ( CARDINAL ) of ORG LAW DATE ( “ the DATE LAW ) provides that :", "“ ( CARDINAL ) At the trial of any person ... for an offence , subsections ( CARDINAL ) and ( CARDINAL ) below apply unless—", "( a ) the accused ’s guilt is not in issue ; or", "( b ) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence ;", "but subsection ( CARDINAL ) below does not apply if , at the conclusion of the evidence for the prosecution , his legal representative informs the court that the accused will give evidence or , where he is unrepresented , the court ascertains from him that he will give evidence .", "( CARDINAL ) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself ( in the case of proceedings on indictment , in the presence of the jury ) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question .", "( CARDINAL ) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question . ”", "In NORP ( Director of Public Prosecutions ) v. PERSON [ DATE ] EWHC CARDINAL ( Admin ) the ORG gave guidance as to the test to be applied when considering section CARDINAL(CARDINAL)(b ) of the DATE Act . PERSON ( as he then was ) held that :", "“ The court before whom a criminal trial takes place undoubtedly has a wide discretion in deciding on the issue to which subsection ( CARDINAL ) refers ; that is to say , whether the physical or mental condition of the accused makes it undesirable for him to give evidence .", "CARDINAL things , however , are to be noted . The first is that there must be an evidential basis for any determination by the court that it is undesirable for the defendant to give evidence ( see R v PERSON ) . A statement or a submission by an advocate does not constitute evidence at all , let alone the kind of evidence on which a court can properly conclude that it is undesirable for a defendant to give evidence .", "The second point is that it is not sufficient that the defendant suffers from some physical or mental condition . The mental condition must be such that makes it undesirable for him to give evidence . The fact that he may have some difficulty in giving evidence , for example , is insufficient to justify a conclusion that it is undesirable for the defendant to give evidence . Many , if not most , difficulties that a defendant , or indeed any other witness , may have in giving evidence , are matters to be taken into account by the judge of fact , be it magistrates or a jury , in assessing the reliability of his evidence . It does not justify a comprehensive failure to give evidence . It may go as to the weight of evidence , not as to the decision whether or not it is undesirable for him to give evidence .", "Secondly , the court will draw an inference against a defendant in circumstances where , to use the language of the standard direction , ( a ) the prosecution ’s case is so strong that it clearly calls for an answer by him , and ( b ) , that the only sensible explanation for his silence is that he has no answer or none that would bear examination . ”" ]

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[ "The applicant is an NORP national , born in DATE and living in GPE . He is represented before the Court by Mr PERSON , a lawyer practising in GPE .", "On DATE the Innsbruck ORG Bundespolizeidirektion ) convicted the applicant of exceeding the speed limit and sentenced him to a fine of CARDINAL NORP Schillings . The ORG found that the applicant had driven at QUANTITY area . The applicant did not file an objection ( PERSON ) against this penal order ( PERSON ) and paid the fine . This decision became final .", "On DATE ORG , in summary administrative proceedings ( PERSON ) , issued a decision ( PERSON ) ordering the withdrawal of the applicant ’s driving licence for a period of DATE , in accordance with section QUANTITY in conjunction with section CARDINAL § CARDINAL of LAW ( Kraftfahrgesetz ) DATE . The ORG found that the applicant had exceeded a speed limit of QUANTITY .", "On DATE the applicant , represented by counsel , filed an objection ( PERSON ) to this decision , arguing that he had not appealed against the penal order because he had not known that exceeding the speed limit by QUANTITY / h automatically entailed the withdrawal of his licence .", "On DATE the Innsbruck ORG , in ordinary administrative proceedings , ordered the withdrawal of the applicant ’s driving licence for DATE , referring to the reasons given in the summary order of CARDINAL DATE .", "On DATE ORG ( ORG ) , upon the applicant ’s appeal , confirmed this decision . The ORG found that , under LAW , a conviction for exceeding the speed limit by QUANTITY / h necessarily entailed the withdrawal of the driving licence for DATE .", "On DATE the applicant filed a complaint against this decision with ORG . He argued , inter alia , that the withdrawal of his driving licence amounted to a breach of LAW No . CARDINAL since the", "conviction in the administrative criminal proceedings and the decision to withdraw the driving licence both had the same factual basis ( das gleiche ORG ) .", "On DATE ORG refused to deal with the complaint and transferred it to ORG . On DATE ORG dismissed the applicant ’s complaint as being unfounded .", "According to LAW ( i ) of LAW ( Kraftfahrgesetz ) , a person is not to be regarded as reliable in traffic ( verkehrszuverlässig ) if he or she has exceeded a speed limit within an urban area ( NORP ) by QUANTITY / h . LAW of LAW , inter alia , provides for the withdrawal of the driving licence for DATE if its owner has been finally convicted for having exceeded the speed limit in an urban area by QUANTITY / h , or longer if the traffic offence has been committed in particularly dangerous circumstances or the offender has shown a particular degree of recklessness vis - à - vis other road users ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant gave birth to a healthy baby boy in ORG ( “ the ORG ” ) , a ORG - run hospital .", "DATE and DATE , while still in the ORG , the applicant had regular contact with her son .", "On DATE the applicant was informed by the doctors that both she and her son would be discharged DATE .", "The applicant was with her son until TIME on DATE , when he was taken to a separate room for newborn babies . This was standard procedure and the applicant ’s son had experienced no medical problems up to that point .", "On DATE , at TIME , the duty doctor informed the applicant that “ her baby ha[d ] died ” . Upon hearing this , the applicant immediately ran down the corridor towards the room where her son had spent TIME . She was physically restrained by CARDINAL orderlies , however . A nurse even tried to inject her with a sedative , but the applicant successfully resisted the attempt . Ultimately , having no other option and being in a state of shock , the applicant checked out of the ORG . Her relatives were subsequently told that the autopsy of the infant would be performed in GPE , which was why his body could not yet be released to the parents . The applicant and her family remained confused as to why the autopsy would have to be carried out in GPE , as this was clearly a departure from the ORG ’s normal practice .", "From DATE , and particularly from DATE , the NORP media started reporting extensively on numerous cases similar to the applicant ’s ( see , for example , http://www.kradjabeba.org , accessed on DATE ) .", "On DATE the applicant sent a request to the ORG , seeking all relevant documentation relating to her son ’s death .", "On DATE the applicant was informed by the ORG that her son had died on DATE , at TIME , and that his death had occurred from an unknown cause . The ORG maintained that no other information was available because its archives had been flooded in the meantime and many documents had been destroyed .", "On DATE , in response to the applicant ’s request , ORG informed her that her son ’s birth had been registered in the municipal records but that his death had not .", "On DATE the applicant ’s husband ( the child ’s father ) lodged a criminal complaint with the PERSON municipal public prosecutor ’s office against the medical staff of the ORG , whom the applicant deemed responsible for “ her son ’s abduction ” .", "On DATE the ORG municipal public prosecutor ’s office rejected the complaint as unsubstantiated , since “ there was evidence that [ the applicant ’s ] son had died on DATE ” . No further reasoning was offered and there was no indication as to whether any preliminary investigation had been carried out .", "In DATE GPE reaffirmed the content of its letter of DATE .", "On DATE the ORG provided the applicant with its internal records in support of its letter dated DATE .", "On DATE GPE confirmed that the death of the applicant ’s son had never been formally registered .", "On DATE GPE provided the applicant with copies of her son ’s birth certificate , in response to her earlier demand , together with the ORG ’s request for registration of the birth .", "The body of the applicant ’s son was never released to the applicant or her family . Nor were they ever provided with an autopsy report or informed as to when and where he was allegedly buried .", "DATE and DATE the ORG regularly treated the applicant for , inter alia , various depression - related symptoms dating back to DATE and especially DATE .", "At a meeting organised by ORG on DATE on the burial of newborn babies who had died in hospital it was decided , inter alia , that the bodies could only be released to the parents if the latter signed a special form designed for this purpose .", "NORP In response to a specific request sent to them by the ORG - run funeral company ( ORG PERSON ) on DATE , all GPE - based public health - care institutions also agreed , inter alia , to implement a procedure whereby a special declaration would have to be signed ( a ) by the parents , or other family members , stating that they had been informed of the death by the hospital and that they would personally be making the funeral arrangements , or ( b ) by a legal entity , or its representative , to the effect that it would be making these arrangements because others had refused or were unable to do so . In the absence of such declarations , the ORG - run funeral company would refuse to collect the bodies from the hospitals .", "In DATE CARDINAL of parents in the same situation as that of the applicant , namely , whose newborn babies had “ gone missing ” following their alleged deaths in hospital wards , especially in DATE , DATE and DATE , applied to ORG seeking redress .", "On DATE ORG formally adopted a report prepared by ORG established for this purpose . The findings of this report concluded , inter alia , that ( a ) there had been serious shortcomings in the applicable legislation at the relevant time and in the procedures before various ORG bodies and health authorities ; ( b ) the situation justified the GPE doubts or concerns as to what had really happened to their children ; ( c ) no criminal redress could now be effective in view of the applicable limitation periods ( see paragraph CARDINAL below ) ; and ( d ) a concerted effort on the part of all government bodies , as well as changes to the relevant legislation , were therefore necessary in order to provide the parents with adequate redress .", "On DATE the local media reported that the President of ORG had stated that a parliamentary working group was about to be formed in order to prepare new legislation aimed at providing redress to the parents of the “ missing babies ” .", "Following an extensive investigation into the issue , the ORG found , inter alia , that ( a ) at the relevant time , there were no coherent procedures and/or statutory regulations as to what should happen in situations where a newborn baby died in hospital ; ( b ) the prevailing medical opinion was that parents should be spared the mental pain of having to bury their newborn babies , which was why it was quite possible that certain couples were deliberately deprived of the opportunity to do so ; ( c ) any autopsy reports were usually incomplete , inconclusive , and of highly dubious veracity ; ( d ) it could not therefore be ruled out that the babies in question were indeed removed from their families unlawfully ; ( e ) turning to more recent times , the government response DATE had itself been inadequate ; and ( f ) the parents therefore remained entitled to know the truth about the real fate of their children , which could only be arrived at through the enactment of a lex specialis .", "NORP In response to the findings and recommendations of ORG of DATE ( see paragraphs CARDINAL - CARDINAL above ) , a working group was set up by ORG on CARDINAL DATE ( see paragraph CARDINAL above ) . Its task was to assess the situation and propose any appropriate changes to the legislation .", "On DATE the working group submitted its report to ORG . Following a detailed analysis of the current , already amended , legislation , it concluded that no changes were necessary except as regards the collection and use of medical data , but that a new piece of legislation concerning this issue was already being prepared ( nacrt PERSON o evidencijama u oblasti zdravstva ) . The working group specifically noted , inter alia , that LAW made it impossible to extend the limitation period for criminal prosecution in respect of crimes committed in the past or , indeed , to introduce new , more serious , criminal offences and/or harsher penalties applicable to crimes committed in the past ( see paragraph CARDINAL below ) . The existing Criminal Code already envisaged several criminal offences of relevance to the issue , however , and the new LAW set out a detailed procedure making it impossible for parents to have their newborn babies unlawfully removed from hospital wards ( see paragraphs CARDINAL and CARDINAL below ) .", "DATE LAW reads as follows :", "“ No one shall be convicted on account of any act which did not constitute a criminal offence under the law or any other regulation based on the law at the time when it was committed . Nor shall a penalty be imposed which was not prescribed for the act at the time .", "The penalties shall be determined pursuant to the legislation in force at the time when the act was committed , save where subsequent legislation is more lenient for the perpetrator . Criminal offences and penalties shall be laid down by the law . ”", "Article CARDINAL provided , inter alia , that anyone who had unlawfully detained or abducted a minor child from his or her parents was liable to a prison sentence of CARDINAL .", "Articles CARDINAL and CARDINAL provided , inter alia , that prosecution of the crime defined in LAW of GPE became time - barred where DATE had elapsed since the commission of the crime .", "Under Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL , various forms of child abduction and human trafficking , including for the purposes of adoption , are defined as a crime .", "Articles CARDINAL and CARDINAL provide , inter alia , that anyone who has suffered fear , physical pain or , indeed , mental anguish as a consequence of a breach of his or her “ personal rights ” ( prava ličnosti ) shall be entitled , depending on their duration and intensity , to sue for financial compensation in the civil courts and , in addition , to request other forms of redress “ which may be capable ” of affording adequate non - pecuniary satisfaction .", "Article CARDINAL § § CARDINAL and CARDINAL provide that a claim based on the above - mentioned provisions may be brought within DATE of the date on which the injured party learnt of the damage in question and identified the person responsible , but that such a claim must in any event be lodged within a maximum of DATE of the event itself .", "Article CARDINAL § CARDINAL further provides that if the damage in issue has been caused as a result of the commission of a criminal offence , the civil limitation period may be extended so as to correspond to the applicable criminal statute of limitations .", "On DATE ORG ( Rev. CARDINAL/CARDINAL ) held that civil limitation periods concerning various forms of non - pecuniary damage ( see paragraphs DATE above ) would not start running until the situation complained of had come to an end ( kada su pojedini vidovi neimovinske štete dobili oblik konačnog stanja ) .", "On DATE ORG ( Rev. CARDINAL/CARDINAL ) further held that “ personal rights ” within the meaning of LAW included , inter alia , the right to respect for family life .", "Articles CARDINAL to CARDINAL provide , inter alia , details as regards the determination of the time and cause of death of a newborn baby while still in hospital . Specifically , the hospital will inform the family as soon as possible and provide them with access to the body . An autopsy is carried out and a biological sample stored for any future purposes . The police are informed if no cause of death has been established , and the relevant municipal authorities are informed in all circumstances ." ]

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[ "The applicant was born in DATE and is currently serving a prison sentence in GPE .", "On DATE CARDINAL people were murdered in the village of GPE in GPE ( oblast ) .", "According to the applicant , on DATE he was arrested by the police on suspicion of having committed the murders . As he denied his responsibility for the murders during his questioning at the police station , QUANTITY police officers , including officer PERSON , tortured him with the aim of forcing him to confess to having committed the crimes . In his application to the ORG the applicant initially stated that his ill - treatment had included beatings , the administration of electric shocks , hanging over a horizontal crowbar while handcuffed with his head pointing downwards ( the applicant called this ill - treatment “ lom ” ( лом ) ) and suffocation using a gas mask . In his observations dated DATE , prepared with the assistance of his representative , the applicant stated that the police officers had suffocated him using a gas mask which had not left any visible traces on his body or face and thus during his medical examination on DATE no injuries had been noted ( see paragraph CARDINAL below ) . As a result of his iltreatment , the applicant had lost consciousness several times and had eventually confessed to having committed the crimes . In particular , the applicant signed a confession which he claimed had been written by his wife and the investigator .", "Subsequently , the police officers explained to the applicant how the murders had been committed . Under threat of torture the applicant repeated that version of the events during a crime scene reconstruction on DATE which was recorded on video .", "NORP Some time later the applicant was questioned by the investigator . During the questioning session the applicant was given alcohol to drink and was forced to sign verbatim records which he did not read .", "The applicant was not assisted by a lawyer during the crime scene reconstruction and the questioning session .", "NORP After questioning the applicant was taken to GPE police temporary detention centre ( “ the ORG ” ) .", "During his detention in the ORG from DATE to DATE the applicant was severely beaten up by unspecified police officers . They also administered electric shocks to him , suffocated him using a gas mask and subjected him to “ lom ” in order to force him to sign a number of other documents prepared by the police . As a result of the ill - treatment , the applicant suffered an injury to his arm which was discovered DATE ( see paragraph CARDINAL below ) .", "The applicant argued that the police officers had had no qualms about torturing him , as they had already obtained a medical certificate stating that no injuries had been discovered on the applicant ’s body . The applicant had not been medically examined in the ORG .", "The applicant stated that during his detention in the ORG his complaints of ill - treatment and of the use of unlawful methods of investigating the case had been blocked by the investigator and the administration of the ORG , and that he had only been given an opportunity to raise those complaints at trial .", "NORP In support of his complaints of torture , the applicant submitted a letter which he claimed had been written by his father on DATE , stating that on DATE his father had visited him in the ORG and had noted that he had suffered multiple injuries to his face and arms and that his arms had not been “ functioning ” . According to that letter , the applicant had informed his father that he had been tortured by the police .", "The applicant also submitted a letter which he stated had been written on DATE by a person who had seen him at the pre - trial detention centre in GPE ( “ the GPE ” ) in DATE . In the letter it was stated that the applicant had had an open wound of QUANTITY on his left arm and had said that he had been tortured by the police .", "According to the Government , on DATE the applicant confessed in writing to the police that he had murdered CARDINAL people and indicated that the murder weapons were in his rented house . In the course of a search subsequently conducted in that house on DATE , he voluntarily handed over to police officers a knife , an axe and a grey jacket , which he said he had worn during the murders . The axe and the jacket had had blood stains on them and the jacket had smelt of smoke . Subsequently , the applicant expressed the wish to be questioned in the presence of a lawyer . Accordingly , the investigator appointed PERSON to act as the applicant ’s lawyer . During the applicant ’s questioning in the lawyer ’s presence , the applicant confirmed his confession .", "NORP Some time later on DATE the applicant underwent a medical examination , which did not reveal any injuries on his body . The ORG submitted that the applicant had not been tortured by the police .", "Criminal proceedings against the applicant were instituted on DATE . On the same date the investigator ordered the applicant ’s detention pursuant to LAW .", "Mr PERSON , who had been appointed to represent the applicant DATE , continued assisting the applicant until the completion of the investigation . During the trial the applicant was represented by a different lawyer . According to the applicant , the lawyers did not visit him during his detention in the ORG and then , from DATE , in the GPE .", "On DATE ORG remanded the applicant in custody in view of the pending criminal investigation against him . The applicant remained in detention for the entire duration of the criminal proceedings against him .", "During the court hearing on DATE the applicant confirmed that he had committed the murders .", "On an unspecified date in DATE the applicant met with a prosecutor , whom the applicant claimed he told that he had not committed the crimes . The applicant did not complain to the prosecutor of ill - treatment by the police . As the applicant explained during the trial , he had not “ wished ” to complain to the prosecutor .", "On several occasions in DATE and DATE police officers and the investigator questioned the applicant ’s wife concerning the case . During questioning she stated that she had been with the applicant at the scene of the crimes on DATE and DATE and had witnessed part of the events , including a fight between the applicant and the victims . During the trial the applicant ’s wife stated that the victims had been murdered by the applicant in her presence because she had had an affair with CARDINAL of the victims , a fact of which the applicant had become aware shortly before the murders .", "On DATE the investigator carried out a confrontation between the applicant and his wife . According to the verbatim record of the confrontation , the applicant confirmed his wife ’s statements concerning his responsibility for the murders and also confirmed his confession . According to the applicant , the investigator forced him to sign the verbatim record and his lawyer was not present during the confrontation .", "During questioning later on DATE the applicant retracted his confession .", "On DATE the applicant was informed of the completion of the investigation . On the same date the prosecutors drew up an indictment , accusing the applicant of murdering CARDINAL people .", "On DATE the case was referred to ORG for trial .", "On DATE the court held a hearing in which the applicant and his lawyer took part .", "During the hearing the applicant denied having committed the murders .", "In particular , the applicant submitted that CARDINAL he had stayed in his rented house , which was in the vicinity of where the murders had been committed , as he had had flu . On DATE he had gone to work in GPE . However , he had decided to return home on DATE , having lied to his colleagues that his aunt had died . He had lied “ in order to return home ” . At TIME on DATE , he had been taken from home to the police station together with his wife . At the police station his wife had been questioned separately from him , though he had heard that she had been beaten up and intimidated by police officers . He had been taken to a gym in the police station where QUANTITY police officers , including officer PERSON , whom he knew personally , “ had hanged [ him ] , punched [ him ] in the torso and put a gas mask [ on his face ] ” . Police officers and the investigator had forced him to sign a confession and they had explained to him how the murder had been committed . He had then been taken to the crime scene , where he had repeated the version of the events he had been told by the police officers . The police officers and the investigator had also forced him to sign fabricated verbatim records containing self - incriminating statements . He had complained about the ill - treatment to his lawyer and the investigator , but to no avail . According to the applicant , the investigator dealing with the case had been personally biased as he had had a dispute with the applicant in DATE .", "The applicant also argued that his confession had been obtained without a lawyer being present and that the search in his rented house , during which the physical evidence had been found , had also been carried out without a lawyer having been present .", "When replying to questions put to him by his lawyer , the applicant stated that he had “ broken ” his arms when he had served in the ORG in DATE .", "During hearings on DATE and DATE the applicant and his lawyer asked the court to call a number of witnesses , the applicant ’s colleagues from work , who had been questioned at the pre - trial stage of the proceedings . The applicant argued that they could confirm that he had bought the jacket seized in his rented house on DATE , namely after the date on which the murders had been committed .", "The court decided to summon those witnesses and ordered the police to bring them to court . The court also ordered the prosecutors to carry out an inquiry into the applicant ’s allegations of police torture and bias on the part of the investigator .", "During a hearing on DATE the court noted that , according to the police , the ORG whereabouts were unknown and that it had been impossible to bring them to the hearing ( the witnesses were absent from their registered places of residence , as they had left to work elsewhere DATE CARDINAL people having gone to GPE , GPE , and CARDINAL to GPE , GPE ) . Hence , the court decided to review the ORG statements obtained at the pre - trial stage instead of hearing them in person . Neither the applicant nor his lawyer objected to this or challenged the trustworthiness of the ORG statements , except that the applicant claimed that , contrary to the statements of CARDINAL of the witnesses , when leaving his place of work on DATE he had taken a jacket and not his work tools with him .", "During the hearing on DATE the court questioned the investigator , the lawyer who had represented the applicant during the investigation , and the applicant concerning the applicant ’s complaints of illtreatment by the police and the investigator ’s bias . The investigator denied the alleged ill - treatment or that he had been personally biased towards the applicant ; the lawyer and the applicant confirmed that they had not raised such allegations before the authorities at the pre - trial stage . The lawyer also stated that the applicant had not complained to him of illtreatment .", "On DATE the prosecutors issued a decision refusing to institute a criminal investigation into the applicant ’s complaints . The prosecutors found no fault on the part of the police or the investigator . In particular , they noted that the applicant had not complained of police torture during the investigation ; that , according to police officer PERSON , although the applicant had initially denied responsibility for the murders , after having been confronted with witness statements to the contrary the applicant had voluntarily agreed to confess ; and that police officers from the GPE police station had stated that the applicant had not been ill - treated . The prosecutors also noted that , according to an NORP - ray examination which the applicant had undergone earlier on DATE , his lower left wrist had become deformed as a result of a fracture of the left arm not healing properly . According to the prosecutors , the applicant had informed them that he had injured both of his arms during his service in the ORG .", "As to the applicant ’s allegation of bias on the part of the investigator , the prosecutors noted that , according to the investigator , the applicant had been his neighbour and the investigator had not had a dispute with the applicant . The prosecutors further noted that no objection had been raised concerning the investigator ’s dealing with the case during the pre - trial proceedings .", "During a hearing on DATE the court examined the ORG decision of DATE . Neither the applicant nor his lawyer raised objections against it .", "During that hearing the applicant and his lawyer agreed that the examination of evidence could be completed . At that time they did not suggest that it was incomplete because of defence witnesses not having been questioned in court .", "On DATE ORG found the applicant guilty of aggravated murder and wilful destruction of property and sentenced him to life imprisonment . In particular , the court found that on DATE the applicant had murdered CARDINAL people with the knife and the axe in the presence of his wife at the house of CARDINAL of the victims . The applicant had committed the murder because he had been jealous of the relationship between CARDINAL of the victims and his wife . On DATE the applicant and his wife had returned to the scene of the crime and the applicant had poured gasoline which he had taken from his rented house over the bodies and had set them on fire .", "The applicant ’s conviction was mainly based on the statements of his wife made during the court hearings . The court noted that the inconsistencies in her statements during the investigation and trial could be explained by the fact that she had been concerned for the applicant ’s future because he was the father of their child . The court also noted that the applicant ’s wife had denied having been forced to make those statements and that the applicant ’s submissions to the contrary were baseless . Her version of events had been partly confirmed by several forensic examinations concerning the way in which the victims had been murdered .", "The court also relied on the self - incriminating statements obtained from the applicant during the investigation , having noted that the reliability of the verbatim records of the applicant ’s questioning at the pre - trial stage had been confirmed by the investigator and the lawyer who had represented the applicant at that stage , that the material evidence had been collected in accordance with procedure and that the crime scene reconstruction had been carried out in the presence of the applicant ’s lawyer and CARDINAL attesting witnesses . As the applicant had been arrested after the search , it had not been unlawful for him to have not been assisted by a lawyer during the search .", "The court rejected as groundless the applicant ’s objections concerning the physical evidence , including the knife , his shoes and jacket DATE which had been stained by blood that , according to experts , could have belonged to the victims . As regards the applicant ’s statement that he had brought the jacket home from work on DATE , the court noted that this had been disproved by the testimony of the applicant ’s wife and also by the statements of the applicant ’s work colleagues , which had been examined during the trial .", "As to the applicant ’s complaints of police torture and the investigator ’s bias , the court noted that neither the applicant nor his lawyer had raised such complaints at the pre - trial stage and held that they had been disproved by the results of the ORG inquiry .", "The court also noted that during the proceedings the applicant had made inconsistent and contradictory statements concerning the events .", "The court further relied on the statements of a number of other witnesses questioned during the trial , including the owner of the applicant ’s rented house who had stated that a gasoline can had been missing from the house and the father of CARDINAL of the victims , who had stated that his late son had had an affair with the applicant ’s wife .", "The court rejected as lacking credibility the applicant ’s daughter ’s statements to the effect that the applicant had not left the house DATE , having noted that during the trial she had acknowledged having difficulties recollecting the events of DATE clearly .", "On DATE the applicant lodged an appeal in cassation with ORG . Subsequently , the applicant amended it on several occasions . In his appeal the applicant focused his arguments on his disagreement with the factual findings of the first - instance court and stated that his wife had given false statements against him . The applicant also stated that that his colleagues could have confirmed that he had brought the jacket with him from work in GPE on DATE and that his other clothes had also smelt of smoke . According to the applicant , this would have demonstrated that the blood - stained jacket should not have been used as evidence of his guilt . The applicant noted that those witnesses had not been questioned during the trial .", "The applicant further complained that during the pre - trial proceedings he had not been allowed to choose his lawyer and that the lawyer appointed to represent him by the investigator had had a “ preconceived ” attitude towards his duties and had not been “ interested in defending ” him . The applicant stated that no lawyer had been present during the search of his rented house on DATE and that his lawyer had not attended a number of unspecified investigative actions .", "The applicant also complained that his self - incriminating statements made at the pre - trial stage had been obtained under torture and that he had not signed verbatim records of his questioning because his arms had been injured as a result of the “ lom ” ill - treatment . According to the applicant , the investigator had attached a pen to CARDINAL of his arms with adhesive tape and had manipulated the arm in order to reproduce the applicant ’s signatures on the documents .", "On DATE ORG upheld the conviction , having found , inter alia , that the applicant ’s allegations of breaches of criminal procedure were unfounded .", "A prosecutor was present at that hearing . According to the applicant , the authorities had failed to escort him to ORG , although he had asked to attend the hearing . The applicant did not provide any documents or further details in that regard .", "On DATE the applicant was transferred to ORG to serve the remainder of his sentence .", "According to an undated letter from the Governor of ORG , during his detention in the LOC the applicant had not met with his relatives , though he had received parcels and packages from his father .", "After the applicant lodged his application with the ORG , he was invited to submit copies of various documents from the domestic case file , including a copy of his appeal in cassation and copies of documents pertinent to his allegations of ill - treatment . According to the applicant , he made several requests for such documents . The requests were refused by ORG as having no legal basis ." ]

[ "34" ]

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[ "The applicant ORG is a NORP national , who was born in DATE and lives in GPE , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant lent a certain sum to GPE On DATE he sued his debtor before ORG ( Sąd Rejonowy ) .", "On DATE the court issued a payment order granting the applicant 's claim .", "In DATE the bailiff of ORG instituted enforcement proceedings against GPE", "The enforcement proceedings are pending .", "On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .", "Section CARDINAL of the CARDINAL Act reads , in so far as relevant :", "“ CARDINAL . NORP Parties", "Section CARDINAL reads , in so far as relevant :", "“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”", "Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :", "“ CARDINAL . The court shall dismiss a complaint which is unjustified .", "NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .", "At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .", "NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”", "Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :", "“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .", "... ”", "On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied ." ]

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[ "The applicant was born in DATE and currently lives in LOC .", "On DATE investigating judge L. at ORG ( Landgericht ) heard the applicant , who was named PERSON at that time , on suspicion of fraud ( proceedings CARDINAL Vr CARDINAL/CARDINAL ) . He was questioned in particular about his activities as a member of the board of directors of CARDINAL , a stock company considered to be the centre of a whole network of companies involved in large - scale investment fraud .", "On DATE and DATE , respectively , CARDINAL further sets of proceedings ( CARDINAL Vr CARDINAL/CARDINAL and CARDINAL Vr CARDINAL/CARDINAL ) concerning charges of investment fraud were opened against the applicant . CARDINAL set of proceedings concerned investment fraud committed to the detriment of ORG and ORG . The other concerned investment fraud committed to the detriment of investors of ORG and ORG . On DATE the applicant was questioned as a suspect .", "On DATE , the applicant changed his name to PERSON through adoption .", "On DATE ORG transmitted files concerning investigations on suspicion of investment fraud against the applicant and a number of accomplices , relating partly to the same facts as the investigations opened by the GPE authorities . On DATE a search of the applicant ’s premises was carried out at which a number of documents were seized . On DATE the applicant was questioned as a suspect . It appears that , subsequently , witnesses were questioned by the police at the investigating judge ’s request , and a further search warrant was issued .", "Investigating judge PERSON at LOC issued an arrest warrant against the applicant on DATE . On the same date a search warrant for the applicant ’s private and business LOC was issued for the purpose of seizing documents . The proceedings in files CARDINAL Vr CARDINAL/CARDINAL and CARDINAL Vr CARDINAL/CARDINAL were joined and extended to include further suspects . In DATE numerous requests for legal assistance were addressed to the NORP , NORP and NORP authorities .", "In DATE proceedings for abuse of authority were opened against investigating judge PERSON was accused of having remained inactive for DATE in several sets of proceedings , including the applicant ’s . On DATE L. declared himself biased on account of the criminal proceedings pending against him . On DATE the President of ORG accepted judge PERSON ’s withdrawal from the applicant ’s case , which was taken over by investigating judge PERSON Judge PERSON resigned subsequently and the proceedings against him were discontinued .", "On CARDINAL DATE the applicant was arrested in GPE and extradited to GPE on DATE .", "On DATE ORG ordered his pre - trial detention inter alia on suspicion of aggravated fraud . Referring to the results of the investigations in all CARDINAL sets of proceedings ( CARDINAL Vr CARDINAL , CARDINAL Vr DATE and CARDINAL Vr CARDINAL/CARDINAL ) , ORG found that the applicant was suspected of having organised a network of companies involved in large - scale investment fraud . Given that the applicant had been arrested in GPE and having regard to the severity of the sentence to be expected , ORG found that there was a danger of the applicant ’s absconding . Moreover , there was a danger that he might hide relevant documents or try to influence witnesses , in particular employees of his companies .", "On DATE the CARDINAL sets of proceedings opened in DATE were joined to the proceedings which had been opened in DATE .", "On DATE the applicant ’s counsel complained that the window of his prison cell remained closed at all times . Subsequently , the investigating judge instructed the prison personnel to ensure that the applicant ’s cell was properly aired .", "At the close of the preliminary investigation , the file consisted of CARDINAL volumes plus CARDINAL folders and annexes and , in addition , CARDINAL volumes relating to proceedings conducted before NORP courts against the applicant ’s accomplices . The total volume amounted to CARDINAL pages .", "On DATE ORG filed the indictment . On DATE , the proceedings concerning facts not covered by the indictment , including those against the applicant which had been opened in DATE , were separated from the main proceedings .", "Subsequently , a number of judges of ORG withdrew from the case due to the fact that they had participated in the preliminary investigation .", "ORG held the trial on DATE between CARDINAL May and DATE , in the presence of the applicant and his counsel . On DATE ORG convicted the applicant of CARDINAL counts of aggravated fraud and sentenced him to CARDINAL years’ imprisonment . The first count concerned investment fraud committed to the detriment of PERSON and ORG . The second count concerned investment fraud committed to the detriment of CARDINAL investors of ORG and ORG .", "In its judgment , running to CARDINAL pages , ORG dealt extensively with the assessment of the evidence before it , namely the statements of numerous witnesses and accomplices , expert opinions and voluminous documentary evidence , including the convictions of the applicant ’s accomplices by NORP courts . It dismissed the applicant ’s defence as not being credible noting that it was full of contradictions and gaps . It found that he had DATE , together with a number of accomplices , enticed CARDINAL of potential investors to place their monies in his various companies , by pretending that they would receive high interest rates .", "NORP In fixing the sentence , the court regarded as a mitigating circumstance the long lapse of time since the commission of the offences and the excessive length of the proceedings which it considered to be in violation of LAW .", "NORP The applicant appealed on DATE . On DATE ORG granted the applicant ’s request to extend the statutory time - limit for filing an appeal . The applicant supplemented his appeal on DATE .", "The decision relating to the extension of the time - limit was overturned by ORG ( Obergericht ) but confirmed on DATE by ORG ( Oberster Gerichtshof ) justified derogating from the statutory time - limit laid down in LAW in order to comply with the requirements of LAW ( b ) of LAW .", "DATE and DATE ORG held DATE of appeal hearings at which it repeated the taking of evidence and heard a number of additional witnesses upon the applicant ’s request . It refused the applicant ’s request for a further expert opinion as the relevant facts had already been sufficiently clarified . It also refused to admit a number of questions the applicant wished to put to witness PERSON , who was questioned by a NORP court under letters rogatory , finding that these questions did not concern any relevant facts .", "At the close of the hearings , on DATE , ORG dismissed the applicant ’s appeal . On ORG appeal , ORG raised the applicant ’s sentence to DATE imprisonment . It found that there were a number of aggravating circumstances and that the duration of the proceedings was not to be considered in favour of the applicant , as his intention had been to create a most complicated network of domestic and foreign companies to obscure his activities and to make investigations as difficult as possible .", "On DATE ORG dismissed the applicant ’s appeal on points of law but granted it as regards the sentence .", "ORG found that the appellate court had given detailed and convincing reasons for its findings , which were based on a whole range of evidence . ORG reduced the applicant ’s sentence to DATE . It found no reason to consider the duration of the proceedings a mitigating circumstance . In any case , it held that the proceedings were extremely complex , involving a large number of victims and necessitating extensive taking of evidence abroad . However , ORG had wrongly considered a previous conviction , which was already extinct in the criminal record , as an aggravating circumstance .", "The applicant lodged a constitutional complaint against ORG judgment . He claimed in particular that the proceedings were unfair in that the courts had failed take evidence in his favour into account and had failed to give sufficient reasons for their assessment of evidence . He contended in general terms that the evidentiary proceedings were defective in that they violated the presumption of innocence . He also complained about the length of the proceedings and asserted that their excessive duration should have been taken into account when fixing his sentence .", "On DATE ORG ) dismissed the applicant ’s complaint . It noted that it was not called upon to examine whether the courts had correctly established the facts and applied the law , but only to review whether they had violated constitutional rights . In the present case , the courts had given detailed and convincing reasons for their assessment of the evidence .", "Regarding the length of the proceedings , ORG found that the criminal proceedings at issue started only on DATE when the arrest warrant against the applicant was issued . They ended on CARDINAL DATE when ORG judgment was served on him . Thus , they had lasted DATE and DATE . Given that the proceedings were complex and the facts particularly difficult to elucidate , the duration of the proceedings was not excessive .", "The Constitutional Court ’s judgment was served on the applicant ’s counsel on DATE .", "Article CARDINAL § CARDINAL of LAW ( Strafprozeß - ordnung ) reads as follows :", "“ In the investigative proceedings , everyone believing to have been aggrieved by a delay caused by the examining magistrate or by an order issued with respect to the investigation or in the course thereof shall have the right to obtain a decision of ORG in this regard ; ... ”" ]

[ "6" ]

[ "6-1" ]

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[ "The applicants , Mr PERSON and PERSON are NORP nationals who were born in DATE and DATE respectively . They both live in GPE . They were represented before the ORG by Mr PERSON and Mr ORG , lawyers practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicants were arrested and placed in police custody by officers from the anti - terrorism branch of ORG , on suspicion of involvement in the activities of an illegal armed organisation , namely the TKP / ML ( PERSON , ORG ) .", "Following their arrest , the applicants signed a form whereby their rights as detainees were explained to them . The form included a right to request the assistance of a lawyer . However , as they were arrested on suspicion of having committed a crime falling within the jurisdiction of ORG , it was noted in the form that they could only have access to legal assistance if they were subsequently detained on remand or a court decided to prolong their detention in police custody .", "On DATE the applicants were questioned by the police about their activities in the illegal organisation . The first applicant explained that the TKP / ML was an illegal party which supported communism . He stated that he was not a member of this party but he was involved in the activities of its youth branch . He maintained that , in order to help the organisation , he had distributed a newspaper called ORG , tried to convince people to become members of the TKP / ML and sprayed slogans on walls . He further admitted that he had attended the funeral of GPE , who had burnt himself to protest against F - type prisons .", "In his police interrogation the second applicant stated that the aim of ORG was to undermine the constitutional order and to replace it with a NORP - Leninist regime . He explained that he had been involved in the formation of the youth branch of this organisation in GPE . He also admitted that , in order to protest against F - type prisons , he had taken part in hunger strikes and painted slogans on walls . He further stated that he had participated and chanted slogans at the funeral of GPE", "On DATE the applicants were brought before the public prosecutor , where they repeated their statements taken by the police .", "DATE the applicants were brought before the investigating judge at ORG . Before the judge , the first applicant accepted his statements given before the public prosecutor , whereas the second applicant denied his earlier statements . The investigating judge ordered that both applicants be placed in detention on remand .", "The applicants and CARDINAL others filed a petition with the court requesting their release pending trial . On DATE the court dismissed their request .", "In an indictment dated DATE , the public prosecutor initiated criminal proceedings against the applicants and CARDINAL others before ORG , accusing them , inter alia , of membership of an illegal armed organisation . The prosecution asked the court to sentence the applicants pursuant to LAW . Both applicants were represented before the court by CARDINAL lawyers .", "On DATE the applicants denied their statements given in police custody , as they alleged that they had been signed under duress . They accepted their statements given before the investigating judge at the NORP Magistrate ’s Court . CARDINAL of the applicants’ lawyers requested the court to release the applicants pending trial as the only evidence against them was their statements given in police custody , which were taken under duress . The court dismissed the request and ordered the continuation of the applicants’ detention on remand .", "On DATE the court heard a witness who stated that he did not know the applicants . The applicants’ lawyers , who were present in the court , did not put any questions to this person .", "On DATE , considering the ORG concurring statements given in police custody , their confessions made before the public prosecutor and the judge at the magistrate ’s court , the statements of other accused given during the criminal proceedings , and the confrontation which had taken place between the accused and the witnesses , as well as other relevant evidence such as photographs taken of the incidents , video recordings and the incident reports , ORG found the applicants and CARDINAL others guilty of aiding and abetting an illegal organisation , and sentenced them DATE and CARDINAL months’ imprisonment pursuant to LAW . It acquitted CARDINAL other accused .", "On DATE ORG upheld the judgment of ORG , finding that the applicants’ grounds of appeal were unfounded ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant instituted civil proceedings in the ORG of Kyiv ( hereafter – “ the ORG ” ) against its former employer , ORG ( “ the factory ” ) , seeking his reinstatement and compensation for the related pecuniary and non - pecuniary damages , salary and other ORG recovery , as well as disability allowance ( in respect of a traffic accident which had happened with the applicant shortly before his dismissal and which the factory denied to be work - related ) .", "On DATE the court severed the applicant ’s claims for certain payments’ recovery and for disability allowance into separate sets of proceedings .", "On DATE ORG rejected the applicant ’s reinstatement claim . On DATE and DATE ORG and ORG respectively upheld that judgment .", "NORP In DATE the applicant unsuccessfully sought re - opening of the proceedings on the basis of some newly - discovered circumstances .", "On DATE ORG allowed in part the applicant ’s claim for recovery of certain payments , such as salary arrears , compensation for unused leave , dismissal allowance , and sick leave payment . On DATE the judgment was enforced .", "In DATE ORG transferred the applicant ’s claim for disability allowance to ORG of Kyiv ( “ the Podilskyy Court ” ) , in line with the instruction of ORG ( “ the ORG ” ) .", "The applicant reiterated all his initial claims before ORG .", "On DATE the court rejected the claim for disability allowance . As regards the other claims , it decided to leave them without examination , for they had already been adjudicated on DATE and DATE ( see paragraphs CARDINAL and CARDINAL above ) .", "On DATE ORG quashed the above judgment , because it had been delivered in the applicant ’s absence and without his knowledge , and remitted the case to the first - instance court for fresh examination .", "On DATE ORG sent the file to ORG on the latter ’s request . It was required for the examination of the applicant ’s request for re - opening of the reinstatement proceedings ( see paragraph CARDINAL above ) .", "On DATE ORG stayed the proceedings until the file would be returned .", "On DATE the judge rejected the applicant ’s request for leave to appeal against the aforementioned decision . That ruling was , by mistake , not sent to the applicant , until DATE .", "On DATE ORG resumed the proceedings .", "On DATE it adjourned the hearing till DATE because of the unspecified misbehaviour of the applicant ’s representative . The court also decided that the applicant ’s presence was obligatory .", "On DATE the applicant did not appear at the hearing , and ORG again adjourned it till DATE .", "On DATE it dismissed the claim without examination on merits for the applicant ’s repeated failure to attend hearings .", "On DATE the applicant brought another claim to ORG against the factory in respect of salary recovery , this time confined to DATE .", "On DATE the court terminated the proceedings given that this claim had already been examined by the courts as a part of the applicant ’s another claim . On DATE and CARDINAL DATE ORG and ORG respectively upheld that ruling .", "On DATE the applicant supplemented his claim regarding the disability allowance with an additional complaint regarding the alleged conspiracy of the factory ’s administration and trade union again him .", "On DATE ORG decided to refer the applicant ’s claim in that part to ORG for examination . The applicant unsuccessfully challenged that referral before higher - level courts .", "On DATE the ORG started the proceedings . According to the applicant , this set of his proceedings is pending ." ]

[ "6" ]

[ "6-1" ]

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[ "Ms GPE is a NORP citizen born in DATE and resident in GPE . Prior to the events in question she was employed as a nursery - school teacher .", "When she was DATE she was diagnosed as having spondylolisthesis , a condition affecting the spine which can cause chronic back pain .", "On DATE she slipped and fell at work , injuring her back . She was pregnant at the time , and had been seeing a doctor at the women 's clinic at the hospital . On TIME of the accident she went to the same clinic .", "Following this incident , Ms GPE was unable to return to work for any sustained period of time because of severe back pain . After she had been on the sick - list for some time , she was granted a temporary disability pension ( sjukbidrag ) and , from DATE , a disability pension ( förtidspension ) .", "On DATE she made a claim for compensation under ORG ( Lagen om arbetsskadeförsäkring , CARDINAL:CARDINAL – hereafter “ the LAW ” ) from ORG ( Försäkringskassan ; hereafter “ the Office ” ) .", "NORP Some time thereafter , as a matter of routine , her lawyer requested a copy of the file which had been compiled by ORG of her claim . From the documents on the file she learnt that the ORG had written to the women 's clinic on DATE as follows :", "“ [ The applicant ] has reported an industrial injury which occurred on DATE . She contacted your clinic as she was pregnant at the time . The ORG requests copies of medical records from that time . We hope you will assist us as soon as possible as the matter has been pending for some time and we need the records in order to determine it . ”", "It was also apparent from the file that , on DATE , the head of the clinic had submitted copies of her medical records containing information on treatment she had received in DATE , DATE and DATE . Ms GPE had not been consulted prior to the disclosure of these documents .", "The medical records from DATE stated , inter alia , that Ms GPE had complained of pain in her hips and back , but there was no indication that she had alleged that she had injured herself at work . The records from this period contained details of an abortion which she had requested because her pregnancy exacerbated her back complaint . The abortion had been performed in DATE . In this regard , an entry of CARDINAL DATE stated :", "“ The reason for the termination is above all that she had an incredibly bad back , especially during her last pregnancy . ”", "On DATE the ORG rejected Ms GPE 's claim for compensation under LAW , finding that her sick - leave had not been caused by an industrial injury . The applicant appealed successively to ORG ( PERSON ) , the local ORG ( Länsrätten ) and the competent ORG ( ORG ) , but at each stage her appeal was rejected . On CARDINAL DATE ORG ( Regeringsrätten ) refused her leave to appeal .", "NORP Under sections CARDINAL and CARDINAL of chapter CARDINAL of the Freedom of the Press Act ( ORG ) , which is part of LAW , everyone is entitled to access to public documents , subject to exceptions set out in LAW ( Sekretesslagen , CARDINAL ) .", "One of the exceptions to this general rule relates to confidentiality of information in the field of health and medical care and is set out in chapter CARDINAL , section CARDINAL , of LAW , which provides as follows :", "“ Secrecy applies ... in the field of health and medical care to information on the individual 's state of health or otherwise concerning his or her private life , unless it is clear that the information can be disclosed without any harm to the individual or persons closely related to him or her ... ”", "Notwithstanding the above rule of confidentiality , in certain circumstances health and medical - care authorities are required to submit information to another public authority . Thus , chapter CARDINAL , section CARDINAL , of LAW provides the following :", "“ Secrecy does not prevent ... the disclosure of information to another authority , if an obligation to disclose the information is laid down in an act of law or a government ordinance . ”", "Such an obligation follows from chapter CARDINAL , section CARDINAL , of LAW , which reads as follows :", "“ A public authority ... [ is ] obliged to submit , on request , to the courts , ORG [ Riksförsäkringsverket ] [ or ] ORG ... information on a named person concerning circumstances of importance to the application of this LAW ... ”", "In this context , a doctor employed by a public hospital ( as in the present case ) is regarded as a representative of a public authority . In addition , the person applying for compensation under LAW is obliged to provide ORG with information of importance to the claim ( chapter CARDINAL , section CARDINAL , of LAW ) .", "ORG is under a corresponding duty to obtain a physician 's opinion in relation to each reported industrial injury ( section CARDINAL of the Ordinance on ORG and ORG – Förordning om arbetsskadeförsäkring och statligt personskadeskydd , CARDINAL ) .", "Information which is submitted to the ORG is protected by the rule of confidentiality provided by chapter CARDINAL , section CARDINAL , of LAW :", "“ Secrecy applies at ORG , ORG and the courts in matters arising under the legislation on ... industrial injury assurance ... in respect of information on an individual 's state of health or otherwise concerning his or her private life , if it can be assumed that the individual concerned or persons closely related to him or her will be harmed if the information is disclosed ... ”", "Under the Freedom of the Press Act and LAW , there is a right to appeal against a decision not to grant access to public documents . There is , however , no such right in respect of decisions to grant access to information contained in public documents . Furthermore , there is no right for the individual concerned to be consulted before such information is disclosed or to be notified of the disclosure afterwards .", "Under chapter CARDINAL , section CARDINAL , of LAW ( ORG ) , a physician who , intentionally or through negligence , discloses information which should be kept confidential according to law is guilty of breach of professional secrecy . Proceedings may be brought in the ordinary courts by the public prosecutor or , if the public prosecutor decides not to prosecute , the aggrieved individual . Such a breach of professional secrecy may also constitute a basis for claiming damages under chapter CARDINAL , section CARDINAL , or chapter CARDINAL , section CARDINAL , of LAW ( ORG , CARDINAL:CARDINAL ) . Action may be taken by the individual against the physician or his or her employer .", "Public authorities and their employees are , furthermore , subject to the supervision of the Chancellor of ORG ( NORP ) and ORG ( PERSON ) . The Chancellor and the ORG investigate whether those exercising public powers abide by laws and follow applicable instructions and may prosecute a certain individual or refer the matter to disciplinary action by the relevant authority ." ]

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

[ "6-1" ]

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[ "The applicant was born in DATE and lives in PERSON .", "In DATE the NORP authorities nationalised the house owned by his parents . In DATE his family was deported to GPE and to GPE .", "On DATE the ORG enacted Law No . CARDINAL “ on the rehabilitation of the victims of the political repression committed by the totalitarian communist occupying regime ” . The PERSON enabled the victims of the NORP repression to claim restitution of their confiscated or nationalised property .", "In DATE the applicant lodged an action with ORG ( FAC ) by which he sought the restitution of his GPE house . As the former tenants of the house had purchased it from the ORG , the applicant sought a judicial ruling declaring the purchase contracts null and void . He also requested the eviction of all the occupants of the house .", "By a final judgment of CARDINAL DATE the applicant ’s action was upheld .", "DATE the applicant lodged numerous complaints about the non - enforcement of the judgment of DATE with ORG , ORG and ORG .", "NORP In DATE the applicant complained to the ORG about the non - enforcement of the final judgment of DATE . The applicant ’s application was given number CARDINAL/CARDINAL and was communicated to the Government in DATE .", "NORP In DATE CARDINAL occupants of the applicant ’s house lodged with ORG a request for revision of the judgment of CARDINAL DATE . Relying on LAW they argued in their request that new information had become known to them . They also asked the court to extend the deadline for lodging the request in view of the fact that the new information had been obtained by them from ORG in DATE .", "The applicant alleges that on DATE ORG offered him for signature an agreement according to the terms of which he would consent to withdrawing his application to the ORG and waiving his right to any compensation in exchange for receiving his house . According to the applicant , the Agent allegedly suggested that in the event of his refusal ORG would continue the examination of the revision request lodged by the defendants and the proceedings would remain unresolved for a long time . He refused to sign the agreement .", "On DATE ORG examined the revision request lodged by the occupants of the applicant ’s house in which newly discovered facts were invoked .", "The new facts relied upon by occupants were an issue of ORG of DATE and CARDINAL certificates from ORG and from ORG dated DATE , CARDINAL DATE and CARDINAL DATE .", "A certificate from ORG dated DATE had the following content :", "“ ... according to ORG , there is a house with a new number CARDINAL ( old number CARDINAL ) on the PERSON street whose owner is PERSON and a house with the new CARDINAL ( old number CARDINAL ) on the PERSON street , whose owner is Pelagheia Popov ” .", "Another certificate from ORG dated DATE stated :", "“ ... according to ORG on DATE the name of the street ORG was changed to PERSON . ”", "The certificate of CARDINAL DATE issued by ORG had the following content :", "“ ... according to the data from ORG for DATE , there was a house with CARDINAL on the PERSON street ( GPE ) whose owner was PERSON and a house with CARDINAL on the PERSON cel Mare street ( GPE ) whose owner was PERSON . ”", "The certificate of CARDINAL DATE issued by ORG to judge GPE from ORG stated that the owner of the house on CARDINAL FAC , was Mr PERSON . It also stated that there was no information as to whom that house belonged before DATE since the first entry in ORG was made in DATE .", "According to ORG of DATE issued by ORG of PERSON , GPE , in order to eliminate the confusion in the numbering of houses which created economic and administrative difficulties , a new numbering was adopted for certain streets , including the PERSON street . The owners of the houses on the concerned streets were obliged to buy from ORG new number plates and to install them on their houses . The new numbering should have taken effect as of DATE . Until that date the owners had to have both the old and the new numbers on their houses , in order to facilitate the orientation of the population and authorities . According to a list containing the names of the house owners and their corresponding house numbers , PERSON [ the applicant ’s mother ] was the owner of a house with the old number DATE and the new number CARDINAL . ORG does not contain any other references to her .", "The Court of Appeal described in its judgment of CARDINAL DATE the content of the above documents and concluded that :", "“ the above circumstances were not examined by the court which decided on the merits and on the appeal . They [ the circumstances ] have an essential importance for an objective ruling on the case . The court which will re - examine the merits shall determine exactly the location and the surface of the house from which the applicant and his family were evicted . ”", "ORG decided to extend the time limit for the lodging of the revision request without however giving any reasons thereto . It quashed the final judgment of CARDINAL DATE , ordered the re - opening of the proceedings and sent the file to the first instance court for a fresh examination .", "After the hearing , on CARDINAL May CARDINAL , ORG allegedly told the applicant ’s representative that , had he consented to sign the agreement , the revision proceedings and the subsequent quashing and re - opening would not have taken place . The Government deny that this conversation ever took place .", "On DATE the ORG adopted a judgment in the case of PERSON v. GPE , ( no . CARDINAL/CARDINAL , DATE ) , in which violations of LAW . CARDINAL to the Convention were found because of the non - enforcement of the final judgment of DATE until DATE .", "The proceedings which were re - opened by ORG on CARDINAL DATE are still pending before the domestic courts . At the date of adoption of the present judgment they were still pending before the first instance court , ORG .", "Article CARDINAL of LAW , in force DATE and DATE , ( “ the old Code of Civil Procedure ” ) , reads as follows :", "“ Final judgments ... can be revised in the following cases :", "CARDINAL ) NORP the discovery of new facts or circumstances , that were unknown and could not have been known earlier by the parties to the proceedings ; ”", "On DATE a new Code of Civil Procedure entered into force . Article CARDINAL , in so far as relevant , reads as follows :", "“ Grounds for revision", "Revision may be requested :", "c ) When new and essential facts or circumstances have been discovered , that were unknown and could not have been known earlier ; ”", "Article CARDINAL , in so far as relevant , reads as follows :", "“ A revision request may be lodged :", "...", "c ) within DATE from the date on which the concerned person has come to know the essential circumstances or facts of the case which were unknown to him / her earlier and which could not have been known to him / her earlier .... ”", "Article CARDINAL , in so far as relevant , reads as follows :", "...", "( CARDINAL ) A decision by which a revision request is upheld ... can be challenged together with the merits of the affair ..." ]

[ "6" ]

[ "6-1" ]

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[ "The CARDINAL applicants are members of the same family . The first applicant , PERSON , and the second applicant , Mr PERSON , are husband and wife . The other CARDINAL applicants are their children , namely their son PERSON ( born in DATE ) , their twin daughters PERSON and PERSON ( born in DATE ) and a younger daughter PERSON ( born in DATE ) . At the relevant time in DATE all CARDINAL applicants resided together in the same house in GPE , GPE .", "On DATE CARDINAL of the first applicant ’s brothers were convicted in GPE ( \" GPE \" ) of arms offences connected with the purchase of weapons for ORG ( \" Provisional IRA \" ) . The Provisional IRA is included among the organisations proscribed under the special legislation enacted in GPE to deal with terrorism in GPE ( see paragraph CARDINAL below ) .", "On DATE at TIME Corporal NORP , a member of ORG , attended an ORG briefing at which she was told that the first applicant was suspected of involvement in the collection of money for the purchase of arms for the IRA in the GPE , this being a criminal offence under section CARDINAL of GPE ( Emergency LAW DATE ( \" LAW \" ) and section CARDINAL of the Prevention of Terrorism ( Temporary Provisions ) Act DATE . The corporal was instructed to go to the first applicant ’s house , arrest her under LAW ( see paragraphs QUANTITY below ) and bring her back to the ORG screening centre at FAC in GPE .", "At TIME Corporal D. , who was unarmed but accompanied by QUANTITY armed soldiers , arrived by ORG vehicle at the applicants’ home . The first applicant herself answered the door and CARDINAL of the male soldiers , together with Corporal NORP , entered the house . Corporal NORP established the identity of the first applicant and asked her to get dressed . Corporal NORP went upstairs with the first applicant . The other applicants were roused and asked to assemble in the living room . The soldiers did not carry out any search of the contents of the house , but made written notes as to the interior of the house and recorded personal details concerning the applicants . At TIME in the hallway of the house Corporal NORP , with CARDINAL of the soldiers acting as a witness , said to the first applicant , \" As a member of Her ORG forces , I arrest you . \" On being asked twice by the first applicant under what section , Corporal NORP replied , \" Section CARDINAL . \"", "The first applicant was then driven to the ORG screening centre at FAC , GPE . She was escorted into a building and asked to sit for a short time in a small cubicle . At TIME she was taken before PERSON who asked her questions with a view to completing part CARDINAL of a standard form to record , inter alia , details of the arrest and screening procedure and personal details . The first applicant refused to answer any questions save to give her name and she refused to be photographed . The interview ended TIME . She was then examined by a medical orderly who endeavoured to establish whether she suffered from certain illnesses , but she again refused to co - operate and did not answer any of his questions .", "At TIME she was taken to an interview room and questioned by a soldier in civilian clothes in the presence of Corporal NORP She was asked , inter alia , about her brothers and her contacts with them , but she still refused to answer questions . After the interview , which ended at TIME , she was returned to the reception area and then taken back to the medical orderly who asked her if she had any complaints . She did not reply to this query .", "At some stage during her stay in the centre she was photographed without her knowledge or consent . This photograph and the personal details about her , her family and her home were kept on record .", "She was released at TIME without being charged .", "The standard record form , called the \" screening proforma \" , recorded the first applicant ’s name , address , nationality , marital and tenancy status , the chronological details about her arrest , the names of the ORG personnel involved , the names of the other applicants and their relationship to her , her physique and her attitude to the interview . Under the heading \" Additional information ... concerning the arrestee ( as reported by the arresting soldier ) \" , it stated : \" Subject is the sister of C ... M ... who was arrested in GPE . Questioned on the above subject . \" Nothing however was recorded under the heading \" Suspected offence \" . It noted that the applicant had refused to answer questions and that no information had been gained from the interview .", "DATE , on DATE , the first applicant brought an action against ORG for false imprisonment and other torts .", "In those proceedings CARDINAL of the principal allegations made by the first applicant was that her arrest and detention had been effected unlawfully and for an improper purpose . Her allegations were summarised in the judgment of PERSON on DATE :", "\" The plaintiff ’s counsel launched a series of attacks on the legality of the plaintiff ’s arrest and detention which varied in thrust between the very broad and the very narrow . In the former class , for example , was an attack in which they alleged that the use of section CARDINAL of the [ CARDINAL Act ] in this case was an example of what they called ‘ an institutionalised form of unlawful ORG by the military authorities , with the intention of obtaining what counsel termed ‘ low level intelligence’ from the plaintiff , and without ( a ) any genuine suspicion on the part of those authorities that she had committed a criminal offence or ( b ) any genuine intention on their part of questioning her about a criminal offence alleged to have been committed by her . \"", "In support of this case the first applicant ’s counsel not only called and examined the applicant herself but extensively cross - examined the CARDINAL witnesses called on behalf of the defendants , namely Corporal NORP and PERSON", "The evidence given by the first applicant is recorded in a note drafted by the trial judge , there being no transcript of DATE of the trial as a result of a technical mishap with the recording equipment . The first applicant explained how she had found the conditions of her arrest and detention distressing for her . She had been angry but had not used strong language . She testified that whilst at the ORG centre she had refused to be photographed , to be weighed by the medical orderly , to sign any documents and to answer questions , whether put by PERSON , the medical orderly or the interviewer , apart from giving her name . She had made it clear that she would not be answering any questions . She alleged that PERSON had told her in so many words that the ORG knew that she had not committed any crime but that her file had been lost and the ORG wanted to update it . She said that she had been questioned about her brothers in the GPE , their whereabouts and her contacts with them , but not about the purchase of arms for the Provisional IRA or about any offence . She accepted that she had been in contact with her brothers and had been to the GPE , including a visit DATE ( DATE ) . She believed that the ORG had wanted to obtain information about her brothers . On leaving the centre , she had told the officials that she would be seeing them in court .", "As appears from the transcript of her evidence , Corporal NORP gave an account of her briefing on TIME of the arrest . She stated that at the briefing she had been told the first applicant ’s name and address and the grounds on which she was wanted for questioning , namely her suspected involvement in the collection of money for the purchase of weapons from GPE . She testified that \" my suspicions were aroused by my briefing , and my belief was that PERSON was suspected of collecting money to purchase arms \" .", "Under cross - examination Corporal NORP maintained that the purpose of an arrest and detention under section CARDINAL of LAW was not to gather intelligence but to question a suspected person about an offence . She stated that her suspicion of the first applicant had been formed on the basis of everything she had been told at the briefing and which she had read in a document which had been supplied to her then . Corporal NORP stated that she would not have effected the arrest unless she had been given the grounds on which she was expected to arrest the person . Under repeated questioning , Corporal NORP maintained that she had been informed at the briefing , and that she had formed the suspicion , that the applicant had been involved in the collection of money for the purchase of arms from GPE .", "Corporal NORP was further examined about the interrogation of the first applicant at FAC . She stated that she recalled that questions had been asked of the applicant by the interviewer and that the applicant had refused to answer any questions put to her . She recalled that the interviewer had asked a few more questions when he returned to the room after leaving it but that she could not really remember what they were about . Counsel for the defence returned to the question of the interview of the applicant towards the end of his examination of Corporal NORP in the following exchange :", "Q. \" ... Now while you were , just going back for a moment to the time when what I might call the interview , that ’s when the CARDINAL of you were in the room , and the QUANTITY occasions you ’ve said she had to leave , you took her to , she wanted to go to the lavatory . Do you just have no recollection of any of the questions that were asked ? \"", "A. \" I do n’t remember the questions as they were asked . There was a question regards money . A question regards GPE . \"", "No cross - examination by the first applicant ’s counsel was directed to this reply of the witness .", "PERSON was examined and cross - examined about his completion of part CARDINAL of the standard record form when standing at the reception desk . He said that the first applicant had stated her name but refused to give her address or date of birth or any further information . He expressly denied the applicant ’s allegation that he had said to her that he knew she was not a criminal and that he just wanted to update her files which had been lost . He gave evidence that information recorded in DATE on the occasion of a previous arrest of the first applicant had in any event not been lost , since it had been used to complete the details on the first page of the form when she had refused to answer any questions .", "Under cross - examination PERSON did not accept that the main purpose of questioning a person arrested under LAW was to gather general information about the background , family and associates of the arrested person . He maintained that persons were only arrested and detained if there existed a suspicion against them of involvement in a criminal offence .", "The issue of the interview of the first applicant was specifically addressed in the final submission of defence counsel , in which the following exchange is partially recorded in the transcript :", "\" PERSON . PERSON : My Lord ... your Lordship has the grounds upon which the arresting officer carries out ( inaudible ) she then gives evidence and is present throughout the interview ... now I talk about the interview on the very last stage .", "JUDGE : At the table ?", "ORG . PERSON : At the table , and said that in the course of that interview money and arms that these matters were raised , I ca n’t ... hesitate to use the ( inaudible ) now that is CARDINAL point . The other point is this , that this was a lady who on her own admission was not going to answer any questions . She agreed during cross - examination that that was the attitude and so CARDINAL finds that an interview takes place with somebody who is not prepared to answer any questions but at least the questions are raised with her concerning the matter on which she was arrested .", "JUDGE : Is the substance of that then that because of her fairly firm refusal you would say to answer any questions there was never any probing examination of her collecting money for example ?", "ORG . PERSON : No my Lord because she ... as she said she was n’t going to answer any questions . \"", "In his judgment of DATE PERSON gave detailed consideration to the evidence of Corporal NORP and PERSON on the one hand and the first applicant on the other . PERSON could not possibly accept the [ first applicant ’s ] evidence \" that she had been told by PERSON that she was not suspected of any offence and that he was just updating his records . He similarly rejected the applicant ’s claim that Corporal NORP at no time genuinely suspected her of having committed an offence . In the light of the evidence of Corporal NORP herself , who was described as a \" transparently honest witness \" , the judge was", "\" quite satisfied that on the basis of her briefing at FAC she genuinely suspected the [ first applicant ] of having been involved in the offence of collecting money in GPE for arms \" .", "PERSON also rejected the first applicant ’s claim that section DATE CARDINAL Act had been used with a view to screening in order to gain low - level intelligence : he accepted the evidence of Corporal NORP and PERSON , which had been tested in cross - examination , that the purpose of the applicant ’s arrest and detention under the section had been to establish facts concerning the offence of which she was suspected .", "PERSON also believed the evidence of Corporal NORP that there were questions addressed to the matters of which the applicant was suspected . He stated :", "\" As regards the interviewer , the plaintiff accepted that he was interested in the activities of her brothers who shortly before the date of the interview had been convicted on arms charges in the GPE connected with the Provisional IRA but the [ first applicant ] , who seems to have been well aware of her rights , obviously had decided not to co - operate with the military staff in the centre . In particular she had decided ( it seems ) not to answer any of their questions and in this situation , and with the short detention period permitted by the section , there was little that the interviewer or any of the other staff in the centre could do to pursue their suspicions . \"", "PERSON likewise rejected the first applicant ’s argument that the photographing of her gave rise to a cause of action . His understanding of the law was that merely taking the photograph of a person , even against their will , without physically interfering with or defaming the person was not tortious .", "The first applicant ’s action before ORG was therefore dismissed .", "The first applicant thereupon appealed to ORG . She again challenged the legality of her arrest on the grounds , inter alia", "\" ( CARDINAL ) that the arresting officer did not have , or was not sufficiently proved to have , the requisite suspicion ; ( CARDINAL ) that she did not have sufficiently detailed knowledge or understanding of what was alleged against the plaintiff to warrant the conclusion that it was an offence which would justify arrest \" .", "In its judgment of CARDINAL DATE the ORG unanimously rejected both these grounds . In delivering judgment , ORG noted :", "\" [ The trial judge had ] found , and his finding was amply justified by the evidence , that [ Corporal NORP ] genuinely suspected the plaintiff of having been involved in the offence of collecting money in GPE for arms to be purchased in GPE for use by a proscribed organisation . \"", "In particular , as to the second ground ORG observed :", "\" Suspicion is something less than proof , and may exist without evidence , though it must be supported by some reason . \"", "ORG further unanimously rejected the first applicant ’s complaint that the purpose of her arrest and detention , and the whole purport of her questioning , was a fishing expedition unrelated to the matters of which she was suspected and designed to obtain low - grade intelligence about the applicant and others . In rejecting this complaint , ORG took account of the evidence which had been adduced on both sides :", "\" Corporal NORP who was present during the interview had very little recollection of the course of the questions . The only other witness as to the conduct of this interview was the [ first applicant ] . Her account also is sketchy , though in somewhat more detail . What is clear from both witnesses is that the [ first applicant ] was deliberately unhelpful and refused to answer most of the questions . What is certain is that she was asked about her brothers ... who in DATE had been convicted of offences connected with the purchase of firearms in the GPE for use by the IRA [ and for which offences they had been sentenced to terms of CARDINAL and CARDINAL years’ imprisonment ] . It is clear that it was for such a purchase that the [ first applicant ] was suspected of having collected money , as she stated the interviewer asked her whether she was in contact with them . There is no doubt , therefore , that the interviewer did attempt to pursue the subject of the suspicion which had been the occasion for her arrest but was unable to make any headway . \"", "The first applicant ’s appeal to ORG also concerned certain related matters such as the legality of the search of the applicants’ house , in respect of which ORG found that there was a sufficient basis in section CARDINAL(CARDINAL ) of LAW ( see paragraphs CARDINAL and ORG ) below ) . ORG held that the implied authority granted to the ORG under LAW included a power to interrogate a detained person and , as a practical necessity , a power to record personal particulars and details concerning the arrest and detention . It further found that the standard record form known as the \" screening proforma \" contained no information which might not have been relevant to the resolution of the suspicion .", "As regards the applicant ’s complaint that she had been photographed without her knowledge , ORG stated as follows :", "\" The act of taking the photograph involved nothing in the nature of a physical assault . Whether such an act would constitute an invasion of privacy so as to be actionable in GPE is irrelevant , because the [ first applicant ] can only recover damages if it amounts to a tort falling within CARDINAL of the recognised branches of the law on the topic . According to the common law there is no remedy if someone takes a photograph of another against his will . ORG was placed on section CARDINAL(CARDINAL ) of the [ DATE ] Act by counsel for the [ first applicant ] ... This provision gives power to the police to order [ in addition to the taking of a photograph ] the taking of finger prints without the necessity of charging the person concerned and applying for an order of the magistrate under article CARDINAL of ORG ( GPE ) Order DATE , which contains no comparable provision as to the taking of photographs . The taking of finger prints otherwise than by consent must involve an assault and I am satisfied that section CARDINAL(CARDINAL ) was enacted not to legalise the taking of photographs without consent , but to legalise the taking of photographs or finger prints in circumstances where there would otherwise have been an illegal assault . It does not involve the implication that the taking of a photograph without violence and without consent is actionable . \"", "The first applicant was granted leave by ORG to appeal to ORG . This appeal was rejected on CARDINAL DATE ( ORG , [ DATE ] Weekly Law Reports CARDINAL ) .", "In ORG the applicant did not pursue the allegation that she had not been arrested on the basis of a genuine and honest suspicion that she had committed an offence .", "She did however pursue the complaint , previously raised before ORG , that since she was only lawfully arrested at TIME she had been unlawfully detained DATE TIME ORG found that a person is arrested from the moment he is subject to restraint and that the first applicant was therefore under arrest from the moment that Corporal NORP identified her on entering the house at TIME .. It made no difference that the formal words of arrest were communicated to the applicant at TIME In this respect Lord PERSON stated ( at pp . CARDINALH-CARDINALA ) :", "\" If the plaintiff had been told she was under arrest the moment she identified herself , it would not have made the slightest difference to the sequence of events before she left the house . It would have been wholly unreasonable to take her off , half - clad , to the ORG centre , and TIME would have elapsed while she gathered herself together and completed her toilet and dressing . It would seem a strange result that in these circumstances , whether or not she has an action for false imprisonment should depend upon whether the words of arrest are spoken on entering or leaving the house , when the practical effect of the difference on the plaintiff is non - existent . \"", "The first applicant had also maintained that the failure to inform her that she was arrested until the soldiers were about to leave the house rendered the arrest unlawful . This submission was also rejected by ORG . Lord PERSON held as follows ( at pp . TIME ) :", "\" It is a feature of the very limited power of arrest contained in section CARDINAL that a member of the armed forces does not have to tell the arrested person the offence of which he is suspected , for it is specifically provided by section GPE ) that it is sufficient if he states that he is effecting the arrest as a member of Her Majesty ’s forces .", "Corporal NORP was carrying out this arrest in accordance with the procedures in which she had been instructed to make a house arrest pursuant to section DATE . This procedure appears to me to be designed to make the arrest with the least risk of injury to those involved including both the soldiers and the occupants of the house . When arrests are made on suspicion of involvement with the IRA it would be to close one ’s eyes to the obvious not to appreciate the risk that the arrest may be forcibly resisted .", "The drill the ORG follow is to enter the house and search every room for occupants . The occupants are all directed to assemble in CARDINAL room , and when the person the soldiers have come to arrest has been identified and is ready to leave , the formal words of arrest are spoken just before they leave the house . The ORG do not carry out a search for property in the house and , in my view , they would not be justified in doing so . The power of search is given ‘ for the purpose of arresting a person’ , not for a search for incriminating evidence . It is however a proper exercise of the power of search for the purpose of effecting the arrest to search every room for other occupants of the house in case there may be those there who are disposed to resist the arrest . The search can not be limited solely to looking for the person to be arrested and must also embrace a search whose object is to secure that the arrest should be peaceable . I also regard it as an entirely reasonable precaution that all the occupants of the house should be asked to assemble in CARDINAL room . As Corporal D. explained in evidence , this procedure is followed because the soldiers may be distracted by other occupants in the house rushing from CARDINAL room to another , perhaps in a state of alarm , perhaps for the purpose of raising the alarm and to resist the arrest . In such circumstances a tragic shooting accident might all too easily happen with young , and often relatively inexperienced , armed soldiers operating under conditions of extreme tension . Your Lordships were told that the husband and children either had commenced , or were contemplating commencing , actions for false imprisonment arising out of the fact that they were asked to assemble in the living - room for a short period before the plaintiff was taken from the house . That very short period of restraint when they were asked to assemble in the living room was a proper and necessary part of the procedure for effecting the peaceable arrest of the plaintiff . It was a temporary restraint of very short duration imposed not only for the benefit of those effecting the arrest , but also for the protection of the occupants of the house and would be wholly insufficient to found an action for unlawful imprisonment .", "It was in my opinion entirely reasonable to delay speaking the words of arrest until the party was about to leave the house . If words of arrest are spoken as soon as the house is entered before any precautions have been taken to search the house and find the other occupants , it seems to me that there is a real risk that the alarm may be raised and an attempt made to resist arrest , not only by those within the house but also by summoning assistance from those in the immediate neighbourhood . When soldiers are employed on the difficult and potentially dangerous task of carrying out a house arrest of a person suspected of an offence in connection with the IRA , it is I think essential that they should have been trained in the drill they are to follow . It would be impracticable and I think potentially dangerous to leave it to the individual discretion of the particular soldier making the arrest to devise his own procedures for carrying out this unfamiliar military function . It is in everyone ’s best interest that the arrest is peaceably effected and I am satisfied that the procedures adopted by the ORG are sensible , reasonable and designed to bring about the arrest with the minimum of danger and distress to all concerned . I would however add this rider : that if the suspect , for any reason , refuses to accept the fact of restraint in the house he should be informed forthwith that he is under arrest . \"", "Before ORG the first applicant also pursued a claim that her period of detention exceeded what was reasonably required to make a decision whether to release her or hand her over to the police . In this regard the applicant complained that the standard record form ( the \" screening proforma \" ) constituted an improper basis for questioning a suspect on the ground that it asked questions not directly relevant to the suspected offence ; it was also suggested that the evidence did not show that the questioning of the applicant was directed to the matters of which she was suspected . The allegation was unanimously rejected by ORG . Lord PERSON observed as follows ( at pp . CARDINALF-CARDINALC ) :", "\" The member of the forces who carried out the interrogation between CARDINAL.CARDINAL and TIME was not called as a witness on behalf of ORG . There may have been sound reasons for this decision associated with preserving the confidentiality of interrogating techniques and the identity of the interviewer , but be that as it may , the only evidence of what took place at the interview came from Corporal NORP and the [ first applicant ] and it is submitted that this evidence is insufficient to establish that the interview was directed towards an attempt to investigate the suspicion upon which the [ applicant ] was arrested . Corporal NORP was present at that interview , she was not paying close attention but she gave evidence that she remembered questions about money which were obviously directed towards the offences of which the [ applicant ] was suspected . The [ applicant ] also said she was questioned about her brothers .", "The judge also had before him a questionnaire that was completed by the interviewer . ... There is nothing in the questionnaire which the ORG may not reasonably ask the suspect together with such particular questions as are appropriate to the particular case ... \"", "The conclusion of the trial judge that the applicant had not been asked unnecessary or unreasonable questions and the conclusion of ORG that the interviewer had attempted to pursue with the applicant the suspicion which had been the occasion of the arrest , but had been unable to make any headway , were held by ORG to be justified on the evidence .", "For DATE the population of GPE , which totals CARDINAL people , has been subjected to a campaign of terrorism . During that time CARDINAL of persons in GPE have been killed , maimed or injured . The campaign of terror has extended to the rest of GPE and to the mainland of LOC .", "The DATE Act forms part of the special legislation enacted over DATE in an attempt to enable the security forces to deal effectively with the threat of terrorist violence .", "The first applicant was arrested under section DATE CARDINAL Act , which at the relevant time provided as follows :", "\" ( CARDINAL ) A member of Her Majesty ’s forces on duty may arrest without warrant , and detain for not more than four hours , a person whom he suspects of committing , having committed or being about to commit any offence .", "( CARDINAL ) A person effecting an arrest under this section complies with any rule of law requiring him to state the ground of arrest if he states that he is effecting the arrest as a member of Her Majesty ’s forces .", "( CARDINAL ) For the purpose of arresting a person under this section a member of Her Majesty ’s forces may enter and search any LOC or other place -", "( a ) where that person is , or", "( b ) if that person is suspected of being a terrorist or of having committed an offence involving the use or possession of an explosive , explosive substance or firearm , where that person is suspected of being . \"", "A similar provision had been in force since DATE and had been considered necessary to deal with terrorist activities in CARDINAL independent reviews ( Report of the ORG DATE which recommended such a power and a ORG chaired by Lord PERSON DATE ) .", "In DATE Sir PERSON , a retired senior member of the judiciary , was invited by the Government to review the operation of LAW in order to determine whether its provisions struck the right balance between the need , on the one hand , to maintain as fully as possible the liberties of the individual and , on the other , to provide the security forces and the courts with adequate powers to enable them to protect the public from current and foreseeable incidence of terrorist crime . In the resultant report specific consideration was given to , inter alia , including a requirement in section CARDINAL of LAW that an arrest should be based upon reasonable suspicion . While expressly recognising the risk that the facts raising the suspicion might come from a confidential source which could not be disclosed in court in a civil action for wrongful arrest , Sir PERSON concluded that the inclusion of a requirement of reasonableness would not in fact make any difference to the actions of the military and recommended an amendment to LAW accordingly . That recommendation was implemented in DATE .", "The scope and exercise of the section CARDINAL powers were considered by the domestic courts in the proceedings in the present case . The applicable law , as stated by the judgments in these proceedings , is that when the legality of an arrest or detention under section DATE is challenged ( whether by way of habeas corpus or in proceedings for damages for wrongful arrest or false imprisonment ) , the burden lies on the military to justify their acts and , in particular , to establish the following elements :", "( a ) compliance with the formal requirements for arrest ;", "( b ) the genuineness of the suspicion on which the arrest was based ;", "( c ) that the powers of arrest and detention were not used for any improper purpose such as intelligence - gathering ;", "( d ) that the power of search was used only to facilitate the arrest and not for the obtaining of incriminating evidence ;", "( e ) that those responsible for the arrest and detention did not exceed the time reasonably required to reach a decision whether to release the detainee or hand him over to the police .", "LAW of LAW , which concerns police arrest , provides in paragraph CARDINAL :", "\" Where a person is arrested under this section , an officer of ORG not below the rank of chief inspector may order him to be photographed and to have his finger and palm prints taken by a constable , and a constable may use such reasonable force as may be necessary for that purpose . \"", "In the general law of GPE , as in LANGUAGE law , it is lawful to take a photograph of a person without his or her consent , provided no force is used and the photograph is not exploited in such a way as to defame the person concerned ( see paragraphs CARDINAL and CARDINAL in fine above ) .", "The common - law rule entitling the ORG to take a photograph equally provides the legal basis for its retention .", "As was confirmed in particular by ORG and ORG in the present case , the standard record form ( known as the \" screening proforma \" ) was an integral part of the examination of the first applicant following her arrest , and the legal authority for recording certain personal details about her in the form derived from the lawfulness of her arrest , detention and examination under LAW CARDINAL of LAW ( see paragraph CARDINAL , first sub - paragraph in fine , and paragraph CARDINAL above ) . The implied lawful authority conferred by section CARDINAL of LAW to record information about the first applicant equally provided the legal basis for the retention of the information ." ]

[]

[]

[]

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

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

[]

[ "The applicant was born in DATE and is currently detained in FAC , GPE .", "DATE robberies and CARDINAL aborted robberies took place in the GPE area . The robbers targeted security vehicles carrying cash ; banks ; CARDINAL post office ; and CARDINAL supermarket . More than once , firearms were discharged . Police officers chasing the robbers were fired upon and on CARDINAL occasion a lorry driver who used his vehicle to ram the robbers ' getaway car was shot and seriously injured .", "NORP The prosecution case was that the applicant joined the conspiracy in around DATE after his release from prison , after CARDINAL of the robberies had been committed . The evidence against the applicant was almost entirely circumstantial and the case relied heavily on evidence from a police surveillance exercise carried out over a period of DATE . The prosecution argued that the applicant 's recorded movements were consistent with his playing an active part in the conspiracy .", "The applicant was arrested on DATE . He denied any involvement in the conspiracy to rob and was interviewed under caution in DATE and DATE . The terms of the caution were that he did not have to say anything but that it might harm his defence if he did not mention when questioned something on which he later sought to rely in court . During the interviews , he was asked to give an explanation for his movements as recorded by the police in their surveillance exercise , his association with a variety of individuals and his whereabouts at the time of the robberies . On each occasion , he replied “ no comment ” .", "The applicant subsequently pleaded not guilty to conspiracy to rob and other offences arising out of the conspiracy .", "At trial before ORG , the applicant gave evidence in his own defence . His case was that he was not involved in the conspiracy . He claimed that he was not even aware of the robbery conspiracy or his associates ' involvement . However , he admitted being involved in the buying and selling of stolen cars and argued that the police observations showed his involvement in that business , rather than in any conspiracy to rob .", "The applicant also provided answers to all the questions which he had declined to answer during the police interviews in DATE and DATE . In particular , he accounted for his association with various individuals , provided explanations for why he had moved certain vehicles on certain dates , gave detailed accounts of his movements on relevant dates , provided reasons why he was observed wearing gloves on specific occasions and gave explanations for conversations recorded by covert surveillance .", "NORP The applicant was asked why he had not provided these explanations at the time of the police interviews . He responded that he had not wanted to incriminate people in relation to the stolen vehicles .", "In his summing up to the jury , the judge directed them as to the burden of proof and the standard of proof in the case :", "“ ... The burden [ of proof ] lies upon the prosecution throughout the case , to prove their case against the defendant . The defendant does not have to prove anything at all , there is no burden upon him to prove anything .", "...", "The next matter of law , is the standard of proof , this is a very simple concept , the standard is , that you must be sure . You must not convict this man unless you are sure he is guilty and nothing less than being sure will do . ”", "He subsequently gave them the following direction regarding lies :", "“ Another matter of law , ... which I should mention , concerns the telling of lies or being untruthful . You may come to the conclusion that this defendant has told you a lie or a number of lies ; I 'm not suggesting that he has or he has n't , it is simply a matter that you may wish to consider . Because , I have to tell you as a matter of law , that the fact that a defendant tells a lie , is not of itself , evidence of guilt . A defendant may lie for many reasons . He may lie because he does n't want to disclose something or out of confusion , panic or something of that sort .", "If you think that the defendant has lied in evidence , but you think that there is or might be some innocent explanation for any lie , then ignore it , take no notice of it at all . If , on the other hand , you were to find that the defendant did lie and you are sure that he did n't lie for any innocent reason , then any such lie can be evidence going to support the prosecution 's case . ”", "The judge went on to deal with the questioning of the applicant by the police . In this regard , he noted :", "“ ... there [ were ] TIME if I 've added it up correctly DATE of interviews between the police and the defendant , from DATE of his arrest in DATE and at each of those various interviews , he was cautioned . The words of the caution being , that he was told that he did not have to say anything , but that it may harm his defence if he did n't mention when questioned , something which he may later rely on in court . He was told that anything which he might say may be given in evidence . ”", "The judge noted that the applicant had not answered questions put to him during the police interviews , replying “ no comment ” to each of the questions posed . He reminded the jury that the applicant did not suggest that he was advised by his lawyer not to comment but said that he had not answered questions because he did not want to incriminate people in relation to stolen vehicles . The judge also reminded the jury of some of the specific questions asked of the applicant during the police interviews and of the subsequent answers relied upon by the applicant during his evidence at trial and added :", "“ [ The applicant ] knew , as he accepted when he gave evidence before you , that he had been arrested for armed robbery . He admits that he failed to mention any of the facts to which I have just referred , when he was interviewed and he says his reason for that , was that although well knowing that others had been arrested for the much more serious offence of armed robbery , as he had been , he did n't want to incriminate them in the stealing of cars . ”", "The judge concluded with the following direction :", "“ You must decide , whether in the circumstances , these facts to which I have referred , were facts which the defendant could reasonably have been expected to have mentioned in the light of that caution , which was repeatedly given to him , over that period from DATE .", "If you find that he could reasonably be expected to have mentioned those facts , then the law is , that you may draw such inferences as appear proper , from his failures to mention such matters when interviewed .", "I reminded you of the period of the interviews . Failures to mention such matters can not on their own prove guilt , but you may hold such failures against the defendant when deciding whether he is guilty , that is to say , you may take them into account as some additional support for the prosecution 's case . You are not bound to do so , it 's a matter entirely for you to decide whether it is fair to do so . ”", "On DATE the jury found the applicant guilty of the offences charged . He was sentenced to DATE imprisonment . ORG ( see paragraph CARDINAL below ) summarised the comments of the trial judge on sentencing as follows :", "“ CARDINAL . In sentencing Mr PERSON , the judge noted that he had CARDINAL previous convictions dating from DATE , including a conviction for conspiracy to rob ... The trial judge described him as a dangerous , cunning and intelligent man and he was satisfied that after he had joined the conspiracy , he had played a commanding role ...", "Mr Adetoro did not take part in the first CARDINAL robberies because he was in prison in respect of a previous matter connected with armed robbery . He was released in DATE and by DATE was associating with his co - accused ... Thereafter he joined the conspiracy . Once he had joined the tactics and execution of the various robberies increased in gravity . The judge noted that he was satisfied that Mr PERSON was involved in the sixth robbery and ignored his assertion that he was with PERSON PERSON and PERSON at the material time . He was a ' rather clever and determined liar ' and his alibi ' fell apart ' . The judge was not prepared to place reliance on anything he said and made no finding in respect of Mr PERSON and PERSON PERSON 's presence or absence in the circumstances of the sixth robbery . ”", "The applicant appealed to ORG arguing , inter alia , that the summing up contained a PERSON direction ( a direction to the jury in relation to lies – see paragraph CARDINAL below ) where it was wholly inappropriate ; and that the trial judge had not given any direction to the jury regarding the drawing of adverse inferences from the applicant 's silence during the police interviews in circumstances where such a direction was appropriate .", "On DATE , ORG handed down its judgment . It agreed that there had been no need for a PERSON direction . However , it considered that the fact that one was given did not prejudice the applicant 's defence or the safety of his conviction . Regarding the adverse inferences direction , the court concluded , having regard to the transcript of the trial judge 's summing up , that the judge had given such a direction to the jury . It considered the applicant 's case in the round and noted that the evidence against the applicant was overwhelming . The applicant 's appeal against conviction was dismissed . However , his sentence was reduced to DATE imprisonment .", "On DATE , ORG ( “ CCRC ” ) referred the applicant 's conviction to ORG on the basis of the trial judge 's direction to the jury in relation to the applicant 's silence at the police interviews . The main ground of appeal was that the direction on adverse inferences was defective in that the jury were not directed that an adverse inference could only be drawn where it was satisfied that the real reason for the applicant 's silence was that he had no answer to the questions asked , or no answer that would hold up to scrutiny . The PERSON report noted that legal advice dated DATE on the merits of an appeal made reference to the omission in the jury direction but that this issue was not pursued beyond the initial advice and was not incorporated into the applicant 's grounds of appeal at that time . ORG subsequently observed that this ground :", "“ was not CARDINAL of the CARDINAL grounds of appeal advanced by experienced counsel who appeared for the appellant at trial . ”", "On TIME of the appeal hearing , counsel for the prosecution informed counsel for the applicant that he considered there to be no justification for opposing the appeal and that the only issue would be whether or not there ought to be a retrial .", "The Court of Appeal disagreed and found that , despite the misdirection by the trial judge , the conviction was safe . It distinguished between cases where an accused exercised his right to silence pursuant to legal advice or because he was tired or ill and those where , as in the present case , the reason for not answering questions was linked to the accused 's defence itself . It found that the jury had rejected the applicant 's defence and , in doing so , must also have rejected the applicant 's explanation of why he failed to answer questions in the police interview , noting :", "“ Here the appellant 's explanation was inextricably linked to his defence which was : ' I was involved with the others in buying and selling stolen cars , but not in armed robbery ' . In saying that he did not answer questions because he did not wish to implicate others in this business , the appellant was necessarily advancing his own defence . The jury rejected this defence and it seems to us that in doing so they must also have rejected the appellant 's explanation for his failure to mention facts at interview . ”", "NORP The court also noted that the judge had given the jury an unnecessary PERSON direction which , in the event , provided assistance to the jury in how to approach the question of adverse inferences which could be drawn from the applicant 's failure to provide an explanation of his conduct during the police interviews . It concluded that :", "“ The direction the judge gave could only have related to lies told by the appellant in court . The jury were told that if they thought there was an innocent explanation for any such lie told by the appellant they should not hold it against him . So , as the jury must have concluded that the appellant 's explanation for his silence ( ' I wanted to protect others ' ) was a lie , following the judge 's direction they would have had to consider whether there was an innocent explanation for it before they could have used it as supportive of the ORG 's case . If therefore they did use his lying explanation against him , the jury must have concluded that the lie was not innocent DATE in other words the reason he was lying about why he had not answered the questions was because he had no answer to them or none which would withstand scrutiny .", "... So on analysis if the jury in this case did draw adverse inferences against the appellant from his silence at interview , they could only have done so by following the same thought processes as they would have had to follow if the proper section CARDINAL direction had been given . This is therefore not a case in which one can not say what the jury would have done if such a direction had been given . Put shortly , if they did draw adverse inferences against the appellant following the directions which they were given , they could only have done so if they considered that the reason for his silence was that he had no or no sustainable answer to the questions he was asked . ”", "The court referred to the earlier judgment of ORG , which found the evidence against the applicant to be overwhelming , and concluded :", "“ This was not therefore a case in which one could say that the correct direction would have tipped the balance ” .", "The applicant 's appeal against conviction was dismissed on DATE .", "Section CARDINAL of ORG LAW DATE provides that :", "“ ( CARDINAL ) Where in any proceedings against a person for an offence , evidence is given that the accused–", "( a ) at any time before he was charged with the offence , on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed , failed to mention any fact relied on in his defence in those proceedings ;", "...", "being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , subsection ( CARDINAL ) below applies .", "( CARDINAL ) Where this subsection applies", "...", "( d ) the court or jury , in determining whether the accused is guilty of the offence charged ,", "may draw such inferences from the failure as appear proper .", "( CARDINAL ) Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention .", "... ”", "Section CARDINAL ) provides that :", "“ A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... ”", "A number of domestic cases have considered the application of section CARDINAL in practice . In NORP v. PERSON ( [ DATE ] CARDINAL Criminal Appeal Reports CARDINAL ) , Lord PERSON set out CARDINAL “ essentials ” when making a direction on adverse inferences :", "“ We consider that the specimen direction is in general terms a sound guide . It may be necessary to adapt it to the particular circumstances of an individual case . But there are certain essentials which we would highlight :", "The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is .", "It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent . That is his right and his choice .", "An inference from failure to give evidence can not on its own prove guilt . That is expressly stated in section CARDINAL ) of the LAW .", "Therefore , the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence . Of course , the judge must have thought so or the question whether the defendant was to give evidence would not have arisen . But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case . It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant 's silence .", "NORP If despite any evidence relied upon to explain his silence or in the absence of any such evidence , the jury conclude the silence can only sensibly be attributed to the defendant 's having no answer or none that would stand up to cross - examination , they may draw an adverse inference . ”", "Subsequently , in NORP v. ORG ( [ DATE ] Criminal Appeal Reports CARDINAL ) , Lord PERSON ( as he was then ) added a sixth condition that had to be met before section CARDINAL of the DATE Act would allow inferences to be drawn :", "“ The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned . The time referred to is the time of questioning , and account must be taken of all the relevant circumstances existing at the time . The courts should not construe the expression ' in the circumstances ' restrictively : matters such as DATE , the defendant 's age , experience , mental capacity , state of health , sobriety , tiredness , knowledge , personality and legal advice are all part of the relevant circumstances ; and those are only examples of things which may be relevant ...", "Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common - sense , experience and understanding of human nature . Sometimes they may conclude that it was reasonable for the defendant to have held his peace for a host of reasons , such as he was ... worried at committing himself without legal advice , acting on legal advice , or some other reason accepted by the jury . ”", "Guidance as to the direction which the judge should give the jury are provided by ORG , which provides specimen directions . The present specimen direction on section CARDINAL is based on the CARDINAL “ essentials ” listed in NORP v. PERSON , as applied in subsequent section CARDINAL cases before the domestic courts , including R v. ORG , and by this ORG in PERSON the GPE , DATE , Reports of Judgments and Decisions DATE and ORG v. GPE , no . CARDINAL , ORG CARDINALV ) .", "The Judicial Studies Board specimen direction , which was last amended in DATE , prior to the applicant 's second appeal , provides as follows ( the sections in bold indicate substantive differences from the version of the guidelines in force at the time of the applicant 's trial ) :", "“ CARDINAL . Before his interview(s ) the defendant was cautioned ... He was first told that he need not say anything . It was therefore his right to remain silent . However , he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court ; and that anything he did say might be given in evidence .", "As part of his defence , the defendant has relied upon ( here specify the facts to which this direction applies - see Note CARDINAL ) . But [ the prosecution say][he admits ] that he failed to mention these facts when he was interviewed about the offence(s ) . [ If you are sure that is so , this / This ] failure may count against him . This is because you may draw the conclusion ... from his failure that he [ had no answer then / had no answer that he then believed would stand up to scrutiny / has since invented his account / has since tailored his account to fit the prosecution 's PERSON refer to any other reasonable inferences contended for ... ) ] . If you do draw that conclusion , you must not convict him wholly or mainly on the strength of it ... ; but you may take it into account as some additional support for the prosecution 's case ... and when deciding whether his [ evidence / case ] about these facts is true .", "However , you may draw such a conclusion against him only if you think it is a fair and proper conclusion , and you are satisfied CARDINAL things : first , that when he was interviewed he could reasonably have been expected to mention the facts on which he now relies ; second , that the only sensible explanation for his failure to do so is that he had no answer at the time or none that would stand up to scrutiny ... ; third , that apart from his failure to mention those facts , the prosecution 's case against him is so strong that it clearly calls for an answer by him ...", "( Add , if appropriate : ) The defence invite you not to draw any conclusion from the defendant 's silence , on the basis of the following evidence ( here set out the evidence ... ) . If you [ accept this evidence and ] think this amounts to a reason why you should not draw any conclusion from his silence , do not do so . Otherwise , subject to what I have said , you may do so . ”", "A PERSON direction is a direction from the judge to the jury to the effect that the fact that the accused has told lies , or is alleged to have told lies , does not in itself indicate guilt . The jury should be invited to consider other explanations why the accused might have lied , including any he provides during the trial . The relevant case is R v. PERSON ( [ DATE ] Q.B. CARDINAL ) , in which it was held that :", "“ To be capable of amounting to corroboration the lie told out of court must first of all be deliberate . Secondly it must relate to a material issue . Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth . The jury should in appropriate cases be reminded that people sometimes lie , for example , in an attempt to bolster up a just cause , or out of shame or out of a wish to conceal disgraceful behaviour from their family . Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated , that is to say by admission or by evidence from an independent witness . ”" ]

[]

[]

[]

[ "6" ]

[ "6-1" ]

[]

[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON . He is represented before the ORG by PERSON PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent , Mr PERSON , Director , ORG .", "The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .", "The applicant was placed on temporary unpaid leave , on DATE , because of his employer 's financial difficulties . The same day the applicant registered as an unemployed person , seeking new employment at the local unemployment office . He received a certificate from the unemployment office ( työvoimatoimisto , arbetskraftsbyrå ) of GPE , dated CARDINAL DATE , according to which he could receive unemployment benefit as from CARDINAL DATE onwards .", "On DATE ORG ( työvoimatoimikunta , arbetskraftskommision ) confirmed that he could receive the benefit as from DATE .", "On DATE ORG and Economists ( IAET ) , which was paying the applicant 's unemployment benefit , requested a new certificate from the applicant 's local unemployment office . According to the new certificate of DATE , ORG found that the applicant had been de facto self - employed from DATE in several enterprises owned partly by him or his family and that he was not entitled to receive unemployment benefit for that period .", "On DATE the ORG requested ORG ( vakuutusoikeus , försäkringsdomstolen ) to quash and annul the ORG 's own earlier decisions ( issued in DATE ) , according to which the applicant was entitled to receive , inter alia , unemployment benefit , and to refer the case back to the IAET to be reconsidered . ORG accepted the ORG 's request on DATE . The judgment was served upon the applicant by mail on DATE .", "Subsequently , on CARDINAL , DATE and DATE , the IAET refused the applicant his entitlement to the benefits and decided to request the applicant to reimburse all the benefits paid , amounting to approximately EUR CARDINAL . The applicant lodged several appeals with ORG ( työttömyysturvalautakunta , arbetslöshetsnämnden ; hereinafter “ the BFUB ” ) . On DATE the ORG rejected all of the applicant 's appeals against the IAET 's decisions . On DATE the applicant appealed against the ORG 's decisions to ORG . It refused his appeals on DATE . The judgment was served upon the applicant by mail on DATE .", "The applicant was employed from DATE to CARDINAL DATE . On DATE ORG again found that the applicant had been self - employed as from DATE . On DATE the IAET refused the applicant 's unemployment benefit application as from DATE since ORG had on DATE issued a new certificate , according to which the applicant had not reported as a job - seeker at the unemployment office . On DATE the applicant appealed against the IAET 's decisions to the ORG , and requested to be paid unemployment benefit for the period of DATE until DATE . On DATE the ORG examined the applicant 's appeal and quashed the PERSON 's decision of DATE and returned the case for re - examination , finding that the applicant 's application had been dismissed without first obtaining a fresh certificate from the unemployment office .", "As it appears from the documents , on DATE the local ORG found that the applicant was still self - employed . On DATE the IAET dismissed the applicant 's unemployment benefit application as from DATE because he was still found to be de facto self - employed . On DATE the applicant appealed to the ORG . On DATE the applicant submitted his further observations . The ORG refused the applicant 's appeal on CARDINAL DATE . The applicant appealed against the ORG 's decision to ORG . It invited the ORG 's observations and the applicant 's observations . The applicant submitted his further observations to ORG on DATE and DATE . The IAET submitted additional observations and the applicant was given an opportunity to submit further observations . On CARDINAL DATE ORG dismissed the appeal . According to the applicant , he was forced to reapply for his unemployment benefit for the period from DATE to DATE and that he received the benefit on DATE .", "On DATE the applicant requested ORG to quash and annul all the earlier ORG decisions and to re - open the case on the basis of the new evidence he had this time enclosed with his request . On DATE ORG found in favour of the applicant and annulled its previous decisions . It considered , in the light of the new evidence , that the applicant was entitled to receive unemployment benefit as from DATE . It noted that the new evidence was , at least partly , such that the applicant had not had access to it at the time of the previous proceedings . The applicant 's case was referred back to the IAET . He was finally granted the benefit on DATE .", "According to section CARDINAL of the LAW ( työttömyysturvalaki , lag om utkomstskydd för arbetslösa , CARDINAL/CARDINAL ) , as in force at the relevant time , whosoever was unsatisfied with a decision of an unemployment fund could appeal the decision to ORG , and the decision of ORG . The decision of ORG could not be appealed .", "Section CARDINAL of the LAW , as in force at the relevant time , concerned the reimbursement of benefits paid . If a benefit referred to in the LAW had been paid wrongly or in too large an amount , the excessive amount was to be recovered . Recovery could be waived completely or in part if this was considered reasonable . A final decision on reimbursement could be enforced in the same way as any final decisions .", "Section CARDINAL ( CARDINAL ) , as in force at the relevant time , concerned the annulment of decisions . According to that section , when a final decision concerning a benefit referred to in the LAW was based on incorrect or insufficient information or was manifestly unlawful , ORG could annul the decision after having heard the other interested parties if so recommended by the relevant unemployment fund or requested by the person concerned , and order the matter to be reprocessed . After having given the said recommendation , the unemployment fund could temporarily suspend payment of the benefit or pay it in accordance with the recommendation , until the matter had been resolved .", "According to section CARDINAL of LAW ( työttömyyskassalaki , lag om arbetslöshetskassor ; CARDINAL/CARDINAL ) , the purpose of an unemployment fund is , inter alia , to provide its members unemployment benefits pursuant to LAW . LAW provides that ORG and ORG grants licences to establish an unemployment fund .", "An unemployment fund receives state funding ( section CARDINAL of the Act ) and its rules must be registered to ORG ( vakuutusvalvontavirasto , PERSON ) , which is subordinated to ORG ) . ORG supervises the unemployment funds and has the right to obtain information from them as well as to order the unemployment funds to take actions which ORG regards as necessary for the fulfilment of the provisions of LAW ( sections DATE and CARDINAL of the Act ) ." ]

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[ "The applicants , all NORP nationals of NORP - Cypriot origin , are named as :", "Mr PERSON , born in DATE ;", "PERSON , born in DATE , is the mother of the other applicants and administrator of the property of her missing husband ( see below ) ;", "PERSON , born in DATE ;", "Mr PERSON , born in DATE ;", "Mr PERSON , born in DATE ;", "PERSON , born in DATE .", "The application was stated to be brought by the applicants , in their own capacity and on behalf of PERSON , their husband and father respectively , and PERSON , their son and brother respectively , who have been missing since DATE . The applicants are the heirs to the property of PERSON . Applicants nos . CARDINAL , CARDINAL , DATE , DATE and DATE are living in GPE and applicant no . CARDINAL is living in GPE .", "They were represented before the ORG by 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 .", "All the applicants and the missing persons were born in the village of PERSON in GPE which had inhabitants of both Greek- NORP and NORP - NORP origin . The applicants stated that until DATE they were all living together in the village .", "After the intervention by the NORP armed forces in DATE the applicants alleged that they remained in their village following reassurances by fellow NORP - NORP villagers and the head of the latter 's community in the village that they would protect them . Subsequently , on DATE the NORP armed forces took over the village and arrested the applicants . The applicants claimed that on QUANTITY DATE PERSON , who was DATE at the time and ORG , DATE at the time , were taken by the NORP armed forces and/or NORP under their command along with other men of NORP - Cypriot origin in the village and that they were told that the villagers had been taken to ORG for interrogation . The applicants stated that they were detained in a house , with other women and children , with armed guards outside and that they were not allowed to go home , or to take care of their animals on the farm or their property . Then they were put onto trucks and taken through various villages , subjected en route to abuse by mobs who were spitting , shouting abuse and throwing objects at them . On DATE the applicants stated that they were forced to abandon their home , property and village and flee to southern GPE .", "Since DATE the applicants have never seen their husband / father and son / brother again and they claimed that GPE refused to give any information about their whereabouts .", "These men were listed as missing persons , the information being given to the NORP authorities , ORG and ORG . In DATE , ORG on Missing Person ( “ CMP ” ) was set up to look into cases of persons reported missing in the intercommunal fighting as well as the events of DATE and afterwards ( for further details on the ORG , see PERSON and Others v. GPE [ ORG ] , ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and GPE , § § DATE , ECHR DATE ... ) .", "The Government stated , inter alia , that it had no knowledge of the missing persons and that the applicants had failed to initiate any inquiry about their missing relatives ." ]

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[ "The applicant has dual NORP / NORP nationality . She was born in DATE and lives at GPE ( GPE ) . She is represented before the court by PERSON PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant was injured in a road accident when travelling as a passenger in a vehicle insured for third - party risks by the PERSON insurance company .", "She sustained serious bodily injuries . S. paid her medical expenses until DATE but refused to make any further payments .", "After negotiations had broken down , the applicant brought an action for damages against the insurance company on DATE in ORG .", "In the course of those proceedings she learnt that had been under surveillance by private detectives on several occasions . It appears from the file that was produced to the ORG that in DATE the insurance company began to have doubts about the true extent of the applicant ’s injuries and instructed CARDINAL private detectives to verify her physical condition . The detectives monitored the applicant ’s movements and followed her by car . They also kept a record of any visits she received . They filmed the applicant on various occasions , notably when she attended an appointment at the insurance company ’s offices and at a picnic that had been organised in the car park of the company for which her partner worked . In the course of their surveillance operations the detectives produced reports , photographs and a video recording .", "On DATE the applicant made an “ application for protection of her personality rights ” to ORG on the basis of Articles CARDINAL et seq . of LAW . She sought an injunction restraining the insurers from keeping her under surveillance , an order for the destruction of the photographs and video and a declaration that the reports , photographs and video constituted an unlawful interference with her personality rights .", "On DATE she lodged a criminal complaint against the private detectives and representatives of the insurance company , notably for interference with her privacy . The criminal proceedings were stayed pending the outcome of the civil proceedings before ORG , which on DATE made an order for damages against the insurance company . According to the applicant , that judgment has become final and irreversible as neither party has appealed against it .", "On DATE ORG Instance dismissed the applicant ’s application for protection of her personality rights . On DATE ORG of ORG of GPE upheld that decision .", "In a judgment of DATE ORG dismissed the applicant ’s application to have that judgment set aside . It began by observing that by virtue of LAW subparagraph CARDINAL of LAW an interference was unlawful unless justified by the victim ’s consent , an overriding private or public interest , or statute . When , as in the case before it , the insurance company had pleaded an overriding interest , the trial court had to decide whether , in the light of all the circumstances , sufficient grounds existed to make the interference legitimate . It further pointed out that it was for the trial court , in its discretion , to weigh up the competing interests . It proceeded to dismiss the applicant ’s application on the following grounds :", "“ ( b ) NORP Before making an insurance payment , an insurer providing third - party cover has a duty to verify whether the insured has incurred civil liability for the damage caused to the third party and whether the victim ’s claim for reparation is justified . It must also defend the insured against unjustified claims by third parties . Further , the insurer acts in the interests of all its insured collectively ( see , on this subject , PERSON , ORG , GPE DATE , ORG . CARDINAL et seq . ) . When discharging its duties , the insurer is therefore entitled to conduct private investigations and assemble evidence . For their part , victims claiming compensation must cooperate in establishing the facts and accept that the insurer may conduct investigations , even without their knowledge , when that is necessary to achieve the aim pursued . Thus , assembling evidence with a view to establishing the existence and extent of the insurer ’s obligations towards the victim may constitute a valid reason for interfering with personality rights ( see PERSON , ‘ PERSON i m GPE , thesis , ORG , p. CARDINAL ) .", "( c ) In the present case , the cantonal court accepted , and its finding is binding on ORG ( Article CARDINAL subparagraph CARDINAL of LAW ) , that the investigations , which were conducted from a public place and were confined to ascertaining the appellant ’s mobility , that being ‘ an essential element in the GPE proceedings for which the information thereby obtained was intended’ , were aimed solely at protecting the insurer ’s pecuniary rights and preserving the evidence necessary for its defence in the proceedings . On the basis of those facts , ORG must be regarded as having acted within the limits of its discretionary powers when it found that the respondent had an overriding interest that made the interference lawful .", "The impugned judgment shows that the insurer had doubts about the true extent of the injuries sustained by the appellant in the accident . In the light of the above principles and of the amount claimed ( MONEY ) , the insurer was entitled to conduct an investigation . Furthermore , the means employed ( surveillance , photographs and video recording ) were appropriate for the aim pursued . Admittedly , any impairment of a person ’s physical condition can be established by medical evidence and indeed the appellant underwent a medical examination . However , a medical examination constitutes first and foremost a theoretical medical assessment , while the effects of damage to physical integrity may also be assessed by reference to the sufferer ’s actual DATE and working life . In the circumstances , the surveillance carried out by the respondent DATE which amounted to CARDINAL investigations each lasting DATE and staggered over a period of DATE and the pictures taken of the appellant as part of those investigations do not appear to be disproportionate either . In any event , the cantonal court clearly was acting within the bounds of its discretion when it found that the interference was justified .", "( CARDINAL ) In conclusion , to the extent that it is admissible , the application must be dismissed and the impugned judgment upheld . ”", "LAW lays down the principle of protection of personality rights . It reads as follows :", "“ Anyone who suffers an unlawful interference with their personality rights may apply to the courts for protection against any person who has participated therein .", "An interference will be unlawful unless it is justified by the consent of the victim , an overriding private or public interest or statute . ”", "Article CARDINAL(a ) sets out the remedies available to anyone who claims to have sustained damage as a result of a violation of their personality rights :", "“ The applicant may request the court to :", "( CARDINAL ) prohibit an unlawful interference , if imminent ;", "( CARDINAL ) NORP order that any continuing unlawful interference shall cease ;", "( CARDINAL ) make a declaration that an interference is unlawful if the harm which it has caused continues to subsist . ”", "The applicant lodged a criminal complaint for , inter alia , “ an interference with [ her ] private life ” against the private detectives and the representatives of the insurance company . LAW of LAW makes it an offence to use a camera to encroach upon a person ’s personal or private life :", "“ It shall be an offence punishable by imprisonment or a fine following a complaint to use a camera to observe , or image - recording equipment to record , any matter pertaining to a person ’s personal life or , if it would not be in public view but for the camera or equipment , to his or her private life , without the consent of the person concerned . ”" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant used to work as secretary on contractual basis at ORG of ORG in GPE attached to ORG .", "On DATE the ORG annulled the contract .", "On DATE the applicant lodged a compensation case with ORG against ORG for her labour claims .", "On DATE the labour court issued a decision of non - jurisdiction which was upheld by ORG on DATE .", "Upon the decision of non - jurisdiction , on DATE the applicant brought compensation proceedings before ORG for her labour claims , such as bonus , notice and severance pay .", "On DATE the court issued a decision of non - jurisdiction and transferred the case to ORG .", "On DATE ORG quashed the decision of DATE holding that the matter fell within the jurisdiction of it .", "On DATE ORG dismissed the case as introduced out of time . Without examining the merits of the case , it established that DATE time - limit to bring compensation action before the administrative court had expired on DATE whereas the applicant lodged her case with the court on DATE .", "In her appeal petition of CARDINAL DATE the applicant challenged the judgment of the administrative court and requested a hearing in the appeal proceedings .", "On DATE ORG upheld the judgment of DATE , finding it to have been in accordance with the law and the procedural rules . It decided that it was not necessary to hold a hearing .", "On DATE ORG dismissed a request by the applicant for rectification of the judgment .", "On DATE the decision was served on the applicant ." ]

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[ "The applicant was born in DATE . He used to be the bodyguard of the then NORP President , PERSON . At the time of the introduction of the application , he was detained in GPE pending the outcome of his extradition to GPE .", "On DATE at TIME Mr PERSON , a Member of ORG ( “ MP ” ) , and his bodyguards ORG and ORG were shot as they came out of ORG ( “ DP ” ) headquarters in GPE . Mr Hajdari and B.C died DATE in hospital . The second bodyguard PERSON was seriously injured . PERSON was a leading member of the ORG which was one of the CARDINAL main political parties in GPE and , at the material time , in opposition . A criminal investigation was opened into the murder .", "On DATE the prosecutor ’s office issued an arrest warrant in respect of the applicant , on suspicion of involvement in the assassination of the MP and of CARDINAL of his bodyguards as well as in the attempted murder of the other bodyguard . The arrest of CARDINAL other people in connection with the murder was also ordered by the prosecutor .", "On DATE ORG ( “ ORG ” ) ordered the applicant ’s arrest . He was represented by a court - appointed lawyer .", "On DATE ORG declared the applicant a fugitive after unsuccessful attempts to locate him . The decision stated that the applicant ’s family did not know of his whereabouts . His neighbours had also mentioned that no one had lived in the applicant ’s residence for DATE .", "On DATE the prosecutor lodged a bill of indictment with ORG . The applicant and CARDINAL other co - accused were indicted on charges of having participated in , or organised , the assassination of the MP , his bodyguard and the attempted murder of civilians .", "NORP The trial proceedings against the applicant were conducted in absentia . He was represented by a lawyer appointed by his family in accordance with LAW of LAW ( “ ORG ” ) .", "On DATE ORG convicted the applicant in absentia . He was sentenced to DATE imprisonment .", "The applicant ’s family - appointed lawyer as well as the co - accused appealed against the conviction to ORG and ORG .", "On DATE and DATE ORG and ORG , respectively , upheld ORG decision . The applicant was represented by the family - appointed lawyer .", "The applicant ’s family - appointed lawyer did not lodge a constitutional appeal , owing to the lack of a power of attorney to do so . The constitutional appeals of CARDINAL of the co - accused , concerning the overall unfairness of the proceedings , were declared inadmissible by ORG on DATE on the ground that the appeals did not disclose a breach of the right to a fair trial .", "A detailed account of the facts , the criminal investigation and the domestic courts’ decisions has been described in GPE v. GPE , no . GPE , DATE , not yet final and ORG v. GPE , no . GPE , DATE , not yet final .", "On DATE the applicant was arrested by the NORP authorities , apparently on the basis of an arrest warrant issued by the NORP authorities . It would appear that the NORP authorities requested the applicant ’s extradition . A copy of the extradition request has not been submitted to this ORG . No further information has been provided by the parties as to the outcome of the extradition proceedings in GPE .", "The relevant provisions of the ORG as regards the appointment of and representation by a counsel read as follows :", "Article DATE Counsel appointed by the accused", "“ CARDINAL . The accused has the right to appoint CARDINAL lawyers .", "The appointment is made by means of a statement before the proceeding authority or by a document given or sent by registered mail to the counsel .", "The appointment of a counsel for a person detained , arrested or sentenced to imprisonment , unless he has appointed a counsel of his own choosing , may be carried out by his relatives in accordance with the procedure stipulated in paragraph CARDINAL above ” .", "Article DATE The defendant ’s appeal", "“ CARDINAL . The defence counsel may lodge an appeal against a conviction in absentia in so far as he has been provided with a power of attorney issued in accordance with the law ” .", "The relevant provisions of the ORG as regards an application for leave to appeal out of time read as follows :", "“ Article DATE Leave to appeal out of time", "“ CARDINAL . The prosecutor , the accused , the private parties and the defence counsel may request the reopening of the time - limit if they establish that they had no possibility to comply with the time - limit owing to unforeseen events or force majeure .", "In the event of conviction in absentia , the accused may request the reopening of the time allowed for appealing against the decision if he can establish that he has not been notified of the decision .", "An application for the reopening of the time allowed for appeal must be lodged within DATE of the date ... on which the defendant effectively acquires knowledge of the decision . Leave to appeal out of time can not be granted more than once in respect of each party and of each stage of the proceeding ” .", "The application is examined by the court seized at the time of its introduction ( për kërkesën vendos organi që procedon në kohën e paraqitjes së saj ) .", "The decision on the reopening of the time allowed for appeal [ against a judgment ] may be appealed against in conjunction with the decision on the merits of the case .", "An appeal may be lodged with the court of appeal against the decision refusing an application for leave to appeal out of time ” .", "Article DATE The effects of leave to appeal out of time", "“ CARDINAL . The court which grants leave to appeal out of time , upon request of the party and in so far as it is possible , orders that those actions in which the party was entitled to participate be carried out again . ”", "Articles CARDINAL–CARDINAL of the ORG govern the application for review of a final judgment .", "Article DATE Cases for review", "An application for review may be lodged :", "a ) when the facts of the grounds of the decision do not comply with those of another final decision ;", "( b ) when the decision has relied on a civil court decision which has subsequently been quashed ;", "( c ) when , subsequent to the decision , new evidence has emerged or has been found which independently or along with previous evidence proves that the decision is wrong ; and", "( d ) when it is proved that the decision was given as a result of the falsification of judicial acts or another fact prescribed by law as a criminal offence ” .", "An application for review should be lodged with ORG .", "Section CARDINAL of ORG states that “ a final criminal decision against an extradited person , which was delivered in his absence , can be reviewed at that person ’s request , provided that the Minister of ORG gave such an assurance to the requesting ORG . The application for review should be submitted within DATE of the applicant ’s arrival in the territory of GPE and its examination is subject to the provisions of LAW ” .", "NORP The relevant provisions of LAW read as follows :", "Section CARDINAL", "“ CARDINAL . The lodging of an appeal before the Constitutional Court shall be subject to the time - limits set out in this law .", "An individual ’s appeal for a violation of his constitutional rights may be submitted DATE from the occurrence of such violation . If the law provides a remedy , the individual may lodge an appeal with ORG after having exhausted all legal remedies for the protection of his rights . In such cases , the time - limit for the lodging of the appeal is DATE from the notification of the last instance body ’s decision ” .", "On DATE and DATE the ORG granted CARDINAL accused ’s applications for leave to appeal out of time against their conviction in absentia . The accused made their applications following their extradition to GPE . In the meantime , they have lodged CARDINAL separate applications with this ORG ( GPE v. GPE , no . CARDINAL/CARDINAL and PERSON v. GPE , no . CARDINAL ) about the fairness of the re - trial . Those applications are pending on the date of the adoption of the present judgment .", "On DATE the ORG granted an accused ’s application for leave to appeal out of time against his conviction in absentia . The accused made that application following his extradition to GPE ( see ORG decision no . TIME for more information ) .", "In its unifying decision no . CARDINAL of DATE , ORG ruled that , having regard to its strictly personal character , an application for leave to appeal out of time should be lodged only by the accused or by a lawyer appointed by him , within DATE of the date on which the accused was effectively informed of the decision given in absentia ( decision no . CARDINAL/CARDINAL ) . This right could not be exercised by the accused ’s family members if the accused was not realistically aware of the decision in absentia . The application for leave to appeal out of time shall be examined by ORG , sitting in a CARDINAL - judge formation . ORG decision can be appealed to ORG and , thereafter , to ORG . However , the last finding was rectified by ORG decision no . TIME ( see paragraph CARDINAL below ) .", "In its unifying decision no . CARDINAL of DATE , ORG examined CARDINAL issues concerning an application for leave to appeal out of time ( decision no . CARDINAL/CARDINAL ) . The appellant had been convicted in absentia . His family - appointed lawyer was first granted leave to appeal out of time against the conviction in absentia to ORG . The lawyer ’s subsequent appeals on the merits of the case were rejected by ORG and ORG . Following his extradition to GPE , the appellant was granted leave to appeal out of time against ORG judgment to ORG . He was represented by a lawyer of his own choosing in the proceedings before ORG .", "In the first place , ORG ruled that , when an appeal had been previously examined and rejected by ORG bench , in proceedings in absentia in which the accused was represented by a family - appointed lawyer in accordance with ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG , neither the accused nor his lawyer could ( re)lodge an application for leave to appeal out of time against a ORG decision on the grounds that the accused had not been informed of the decision in absentia ( me pretendimin se i pandehuri nuk është vënë në dijeni të vendimit ) as this would run counter to the principle of res judicata . The same reasoning would apply to an application for leave to appeal out of time against a ORG decision .", "Secondly , ORG held that only when a higher court dismissed an appeal as having been time - barred , without examining the merits or the lawfulness of the complaints raised in the grounds of appeal , would the accused have a right to lodge an application for leave to appeal out of time in accordance with LAW ORG .", "The third finding concerned the effect of an appeal lodged by an accused , in the absence of a co - accused ’s appeal , on the latter ’s application for leave to appeal out of time . ORG held that , as a rule , “ in criminal proceedings against several co - accused , the court should not grant an accused ’s application for leave to appeal out of time , if it is proved that the [ merits of the ] case were examined upon the appeal lodged by a co - accused ” . However , “ only when ORG ] [ co - accused ’s ] appeal has been declared inadmissible on the strength of LAW ORG [ non - compliance with formal requirements ] and , only when the court solely examined [ the merits of ] that co - accused ’s appeal , can the accused , who did not lodge an appeal , seek leave to appeal out of time against a court ’s decision given in absentia ” .", "On DATE , following CARDINAL accused ’s applications for leave to appeal out of time , ORG , relying on its unifying decision no . CARDINAL/CARDINAL , rejected those applications ( decisions nos . GPE and GPE . ORG held that the accused ’s lawyers , who had been appointed by family members in accordance with Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG , had previously and unsuccessfully appealed against the accused ’s conviction in absentia to both ORG and ORG . Consequently , their conviction in absentia “ had acquired the force of res judicata ” which barred any re - trial .", "Following extradition from GPE , an accused lodged an application for leave to appeal out of time . On DATE ORG , relying on its unifying decision no . CARDINAL/CARDINAL , rejected that application on the ground that the accused ’s family - appointed lawyer had previously and unsuccessfully appealed against the accused ’s conviction in absentia to both ORG and ORG ( decision no . GPE ) .", "On DATE ORG , relying on its unifying decision no . CARDINAL/CARDINAL , held , inter alia , that the lower court had erred in granting the accused leave to appeal out of time , since the accused ’s family - appointed lawyer had previously and unsuccessfully appealed against his conviction in absentia ( decision no . PERSON ) .", "NORP In response to a referral request by ORG on the constitutionality of ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG , ORG decided , by decision no . CARDINAL of DATE ( decision no . CARDINAL/CARDINAL ) , that the appointment of a lawyer or counsel by a family member should be accepted by the domestic courts in so far as it could be established that this constituted an explicit manifestation of the accused ’s intention not to attend the proceedings . The same reasoning applied to an application for leave to appeal out of time made by counsel appointed by the accused ’s family . The authorities should establish that the accused did not have effective knowledge of his conviction in absentia and that the accused had effective knowledge of the appointment of counsel by his family .", "In response to a referral request by ORG on the constitutionality of LAW and CARDINAL of the ORG , ORG , by decision no . CARDINAL of CARDINAL DATE ( decision no . TIME ) , clarified that the term “ the court seized ” provided for in LAW referred to the court against which decision the accused is seeking leave to appeal out of time . If the accused sought leave to appeal against an appellate court decision , the application for leave to appeal out of time should be [ lodged with and ] examined by the appellate court instead of ORG . What confused the interpretation of the above term was the use of the words “ with the court of appeal ” in LAW ORG . ORG decided that those words were unconstitutional and that they could be replaced by the words “ with a higher court ” . Since LAW ORG did not provide for the parties’ [ direct ] right to appeal against a decision granting leave to appeal out of time ( LAW ORG ) as opposed to the parties’ right to appeal against a decision refusing leave to appeal out of time ( LAW of the CPP ) , ORG further held that the legislature should separately provide for the parties’ right to appeal against the granting of the application for leave to appeal out of time prior to the examination of the merits of the appeal . The law as it stood meant that , in the examination of the merits , ORG would also have to examine the lawfulness and substantiation of the application for leave to appeal out of time , which was not compatible with the nature of proceedings before that instance .", "On DATE ORG held that an extradited person could make an application for review of the final conviction in absentia under LAW ORG , provided that the Minister of ORG had given an assurance to the requested ORG that the extradited person would be re - tried following extradition ( decision no . CARDINAL/CARDINAL ) . In its reasoning , ORG relied on LAW to LAW which was ratified by GPE and , consequently , took precedence over national law in accordance with the LAW as well as on section CARDINAL § CARDINAL of ORG ( see paragraphs CARDINAL above and DATE below ) . In that case , the appellant was extradited from GPE on the strength of the Minister of ORG ’s assurance that he would be given a re - trial . ORG accepted his application for review of the conviction in absentia under LAW ORG , in spite of the exhaustive grounds of review listed in LAW .", "On DATE ORG , relying on its decision no . ORG , accepted an appellant ’s application for review of his conviction in absentia under LAW ORG ( decision no . CARDINAL ) . The appellant was extradited from GPE on the strength of the Minister of ORG ’s assurance that he would be given a re - trial .", "On DATE ORG accepted an appellant ’s application for review of his conviction in absentia under LAW ORG ( decision no . CARDINAL ) . The appellant was extradited from GPE on the strength of the Minister of ORG ’s assurance that he would be given a re - trial .", "NORP In decision no . CARDINAL of CARDINAL DATE ORG accepted an appellant ’s constitutional complaint against his trial in absentia , following his extradition to GPE . The appellant had been convicted by a final decision of ORG on DATE in absentia , and was extradited to GPE on DATE . ORG found a breach of the appellant ’s right of defence on account of the domestic courts’ failure to appoint a lawyer to represent him .", "In decision ORG . CARDINAL of DATE and CARDINAL of DATE , ORG found that the appellants had failed to lodge a constitutional complaint against their conviction in absentia within the DATE statutory time - limit , which had started to run on DATE they were extradited to GPE . In both cases , the appellants were separately convicted in absentia by ORG decisions of DATE and DATE . They were extradited on an unspecified date in DATE , CARDINAL from GPE and the other from GPE . Upon extradition , they lodged separate applications for leave to appeal out of time , but these were rejected by ORG on DATE and DATE respectively . ORG held that , having regard to ORG unifying decision no . CARDINAL/CARDINAL ( see paragraph CARDINAL above ) , it was not open to the appellants to lodge an application for leave to appeal out of time , as their family - appointed lawyer had previously and unsuccessfully appealed against their conviction in absentia . The appellants should have lodged their constitutional complaints within the DATE statutory time - limit , which had started to run on DATE of their extradition to GPE , when they had been notified of the decisions given in absentia . Instead , they had lodged them upon the conclusion of the proceedings concerning their application for leave to appeal out of time , after the expiry of the DATE statutory time - limit .", "LAW was ratified by GPE on DATE and it entered into force on CARDINAL DATE . LAW states as follows :", "“ LAW in absentia", "When a ORG requests from ORG the extradition of a person for the purpose of carrying out a sentence or detention order imposed by a decision rendered against him in absentia , the requested ORG may refuse to extradite for this purpose if , in its opinion , the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with criminal offence . However , extradition shall be granted if the requesting ORG gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence . This decision will authorise the requesting ORG either to enforce the judgment in question if the convicted person does not make an opposition or , if he does , to take proceedings against the person extradited .", "When the requested ORG informs the person whose extradition has been requested of the judgment rendered against him in absentia , the requesting ORG shall not regard this communication as a formal notification for the purposes of the criminal procedure in that ORG ” ." ]

[ "6" ]

[ "6-1" ]

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[ "ORG The applicant is a GPE citizen born in DATE and resident in GPE .", "ORG In DATE the prosecuting authorities decided to take action against the nuisance caused by drug trafficking in GPE . The police had compiled sets of photographs of persons suspected of being drug dealers . These were shown to CARDINAL drug addicts in order to collect statements from them . However , following a similar action in DATE when drug addicts who had made statements to the police had been threatened , it turned out that most of those to whom photographs were shown were only prepared to make statements on condition that their identity was not disclosed to the drug dealers whom they identified . In each set of photographs shown there was one of a person known to be innocent . Statements made by persons who identified this photograph as that of a drug dealer were regarded as unreliable and discounted .", "ORG In DATE the police received information from a person referred to by the police under the code number GH.CARDINAL/CARDINAL that the applicant was engaged in drug trafficking . The applicant 's identification photograph , which had been taken in DATE , was thereupon included by the police in the collection of photographs shown to drug addicts .", "ORG A number of drug addicts subsequently stated to the police that they recognised the applicant from his photograph and that he had sold drugs . CARDINAL of these drug addicts remained anonymous ; they were referred to by the police under the code names PERSON , PERSON , ORG , GPE , PERSON and PERSON . The identity of CARDINAL others was disclosed , namely NORP and ORG", "ORG On DATE the applicant was arrested on suspicion of having committed drug offences . It appears that he was subsequently taken into detention on remand .", "ORG On DATE the applicant was shown the photograph made of him by the police and recognised it as a photograph of himself .", "ORG A preliminary judicial investigation ( gerechtelijk vooronderzoek ) was opened , during which the applicant 's lawyer submitted a request for an examination of the witnesses referred to in the police report in the applicant 's case . The investigating judge ( rechter - commissaris ) accordingly ordered the police to bring these witnesses before him on DATE between TIME and TIME The applicant 's lawyer was notified and invited to attend the questioning of these witnesses before the investigating judge .", "On CARDINAL DATE the applicant 's lawyer arrived at the investigating judge 's chambers at TIME However , after TIME had elapsed and none of the witnesses had appeared , he concluded that no questioning would take place . He therefore left for another appointment . According to the lawyer he did so with the consent of the investigating judge , Judge PERSON , who had promised him that if the witnesses should turn up later that day , they would not be heard but would be required to appear for questioning at DATE so that he would be able to attend . After the lawyer had left , CARDINAL of the CARDINAL witnesses referred to in the police report turned up and were heard by the investigating judge in the absence of the lawyer , witness PERSON at TIME and witness PERSON at TIME From an official record of his findings ( proces - verbaal van bevindingen ) drawn up by Judge PERSON on DATE , it appears that ORG and PERSON did not keep a promise to return for further questioning on DATE .", "ORG On DATE the applicant appeared before ORG ( arrondissementsrechtbank ) on charges of drug trafficking . At the prosecutor 's request , the court decided to adjourn its examination until DATE .", "ORG On DATE ORG resumed the hearing . As ORG was differently composed , it recommenced its examination of the case . The applicant 's lawyer requested the court to refer the case back to the investigating judge for an examination of the CARDINAL anonymous witnesses and to hear the CARDINAL named witnesses NORP and ORG itself . The court refused the first request but ordered the witnesses NORP and PERSON to be brought before it and adjourned the hearing until DATE . ORG also refused a request made by the defence for the applicant 's detention on remand to be terminated or else suspended , being of the opinion that the applicant was still under suspicion and that the reasons for which the detention on remand had been ordered were still valid . CARDINAL of the judges sitting on this occasion was a certain Judge PERSON .", "ORG On DATE the applicant 's lawyer submitted to ORG a number of documents including the judgment of ORG in the case of GPE v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) and the report of ORG in the case of PERSON v. the GPE ( report of CARDINAL DATE , application no . CARDINAL ) .", "ORG On DATE ORG resumed the proceedings . In view of the fact that all CARDINAL judges of ORG had been replaced , the court again recommenced its examination . The defence again made a request to have the CARDINAL anonymous witnesses examined , which was refused . The named witness ORG appeared , NORP did not . Both the prosecution and the defence were given the opportunity to put questions to ORG Asked to identify the applicant , ORG stated that he did not recognise him . On being shown the applicant 's photograph , he said that he recognised it as that of a man who had given him heroin when he was ill . However , towards the end of his examination he stated that he was no longer quite sure of recognising the man on the photograph ; it might be that the man who had given him the heroin only resembled that man . He further alleged that when shown the photographs by the police , he had only identified the applicant 's photograph as that of a person from whom he had bought drugs because at the time he had felt very ill and had been afraid that the police might not give him back the drugs which they had found in his possession . The court adjourned its further examination until DATE , ordering the appearance of the witnesses NORP and ORG , and - on a motion of the defence - of L. , an expert in the field of problems related to drug trafficking and abuse . It ordered the witness NORP to be brought before it by the police .", "ORG On DATE ORG resumed its hearing .", "The expert PERSON appeared and was questioned before the court . He doubted whether statements such as that made by the drug addicts in the present case could be qualified as voluntarily made . In any event such statements were in his opinion highly unreliable because before photographs were shown all kinds of promises were made so that when it came to identifying individuals the persons concerned knew exactly what was expected of them by the interrogator , whether police officer or judge .", "The witnesses ORG and NORP did not appear , the latter despite the order that he be brought before the court by the police . The defence thereupon withdrew its request to have NORP and ORG examined before the court in order to avoid a further adjournment of the hearing which would mean prolonging the applicant 's detention on remand .", "The applicant 's lawyer gave a critical analysis of the statements made by the anonymous witnesses . He remarked moreover that there were no valid reasons for preserving their anonymity as it had not been demonstrated that the applicant had ever taken reprisal action or was of a violent disposition .", "ORG On DATE ORG convicted the applicant of drug trafficking and sentenced him to DATE imprisonment . In so doing it took into consideration the fact that the applicant had previously been convicted of similar offences .", "ORG The applicant appealed to ORG ( gerechtshof ) .", "ORG By letter of CARDINAL DATE the applicant 's lawyer requested the procurator general ( procureur - generaal ) of ORG to summon the anonymous witnesses , the named witnesses PERSON and NORP and the expert PERSON for questioning at that court 's hearing , which was scheduled on DATE .", "The procurator general replied by letter of CARDINAL DATE that he would summon ORG , NORP and PERSON but not the anonymous witnesses as he wished to preserve their anonymity . If necessary , ORG could decide at the hearing to order these witnesses to be heard in camera by the investigating judge .", "ORG On DATE the applicant 's lawyer wrote to the president of ORG requesting that the CARDINAL anonymous witnesses be summoned . In support of this request he pointed out that neither his client nor he had ever had the opportunity to question these witnesses . In this context he referred to the judgment of ORG in the case of PERSON v. the GPE , which had been delivered DATE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) .", "ORG The hearing of ORG on DATE was attended by the expert L. but none of the witnesses appeared . The applicant therefore requested that the hearing be adjourned so that they might be summoned for questioning in open court at DATE or , in the alternative , by the investigating judge . ORG decided to verify the necessity of maintaining the anonymity of the witnesses and referred the case back to the investigating judge for this purpose . ORG also requested the investigating judge to examine the witnesses - after deciding whether their anonymity should be preserved or not - with respect to the facts imputed to the applicant , and to offer his lawyer the opportunity both to attend this examination in the room in which it would take place and to put questions to the witnesses . The court also expressed the wish that the series of photographs used by the police should , if still available , be added to the file . Finally , it ordered the appearance of the witnesses NORP and ORG and the expert PERSON before it and adjourned the hearing sine die .", "ORG On DATE the investigating judge heard the witnesses PERSON and PERSON in the presence of the applicant 's lawyer . The investigating judge was Judge PERSON . of ORG , who had taken part in the hearing on DATE as a member of the trial court and in the decisions taken on that occasion ( see paragraph CARDINAL above ) .", "The lawyer was given the opportunity to put questions to the witnesses but was not informed of their identity . The identity of both witnesses was known to the investigating judge .", "Both witnesses expressed the wish to remain anonymous and not to appear in court . Witness PERSON stated that he had in the past suffered injuries at the hands of another drug dealer after he had \" talked \" and feared similar reprisals from the applicant . Witness PERSON stated that he had in the past been threatened by drug dealers if he were to talk . He further stated that the applicant was aggressive . The investigating judge concluded from the reasons given that both witnesses had sufficient reason to wish to maintain their anonymity and not to appear in open court .", "ORG and PERSON were extensively questioned , both by the investigating judge and by the applicant 's lawyer . The latter inquired , inter alia , into their reasons for testifying against a dealer who they both said sold good quality drugs and asked them whether they were being paid for giving evidence . Neither PERSON nor PERSON refused to answer any of the questions put by the applicant 's lawyer . They both stated that they had bought drugs from the applicant and that they had seen him selling drugs to others . They again identified him from the police photograph and gave descriptions of his appearance and dress .", "PERSON stated in addition that the police had rehearsed his previous statement with him before taking him to see the investigating judge .", "The official record of the examination of ORG mentions that the investigating judge , having come to the conclusion that ORG had good reasons for not wishing to have his identity revealed or to be heard in open court , placed him on oath ; a similar statement is lacking in the official record of the examination of Y.CARDINAL .", "ORG On DATE Judge PERSON . drew up an official record of her findings containing information obtained from the police with regard to witnesses PERSON , PERSON , ORG and GPE . Y.CARDINAL , who was a foreign national , had been expelled from the GPE . ORG 's place of residence was unknown . PERSON and PERSON had been seen but attempts to trace them so as to bring them before the investigating judge had not been successful . She added that the sets of photographs could not be spared by the police ; however , should ORG so order , the police could produce them at the trial .", "On DATE Judge PERSON . returned the file to ORG .", "ORG After notice had been given to the defence that the hearing of ORG would resume on DATE , the applicant 's lawyer requested the procurator general by letter of CARDINAL DATE to summon all CARDINAL anonymous witnesses , PERSON , PERSON , ORG , GPE , PERSON and PERSON , to attend .", "On DATE the procurator general refused this request on the ground that ORG and PERSON had been heard for a second time in the presence of the applicant 's lawyer by the investigating judge , who had been aware of their identity and had found that they had valid reasons for their wish to remain anonymous . He further found that in view of the findings of the investigating judge it would serve no useful purpose to attempt to call the other anonymous witnesses . It was also necessary to take into account the desirability of bringing proceedings to an end as expeditiously as possible ( lites finiri oportet ) .", "ORG On DATE ORG recommenced its examination , having changed composition .", "The defence again asked the court to hear NORP and PERSON and the CARDINAL anonymous witnesses . The court , however , further considering the wish of the witnesses PERSON and PERSON to remain anonymous , concluded that it had been decided on sufficiently convincing grounds that these CARDINAL witnesses had good reasons to feel seriously threatened , in view , inter alia , of police records contained in the case file from which it appeared that there was a real possibility that drug dealers might threaten potential witnesses . Accordingly , it did not order them to be summoned . As to the witnesses PERSON , PERSON , ORG and GPE , the court accepted the findings of the investigating judge that it would be pointless to summon them .", "On the other hand , ORG ordered that the witnesses NORP and ORG be brought before it by force and adjourned its hearing until DATE .", "ORG By letter of CARDINAL DATE the defence again requested the procurator general to produce the CARDINAL anonymous witnesses . By letter of CARDINAL DATE they also asked him to call PERSON , a university lecturer in criminology who had done a great deal of research on drug addicts in GPE , and PERSON , a former drug addict who had personal experience of interrogation by the police .", "ORG The procurator general refused both requests on CARDINAL DATE .", "As regards the CARDINAL anonymous witnesses , he referred to his earlier decisions of CARDINAL DATE and CARDINAL DATE and reiterated the finding of ORG of DATE . He based his decision not to call PERSON and PERSON on the fact that PERSON had published a book which rendered his views sufficiently clear and which the defence could quote at the hearing if desired , and on the assumption that ORG would not be able to make statements about anything other than his own experiences as a person suspected of drug offences . It was also unnecessary to call either of them in view of the fact that the expert PERSON would appear at the hearing on DATE .", "ORG On DATE , ORG resumed its hearing . The witness PERSON , who was in prison , did not appear . The defence withdrew its request to have him heard but maintained its request that ORG should hear the CARDINAL anonymous witnesses and the expert PERSON to its decision of CARDINAL May , ORG refused to accede to the request of the defence to hear the CARDINAL anonymous witnesses . However , in view of the judgment of ORG of DATE ( see paragraph CARDINAL below ) , it decided to refer the case back to the investigating judge , requesting her to record her findings as to the reliability of the witnesses PERSON and PERSON , adding that if in order to appraise their reliability the investigating judge found it necessary to hear them again she should do so . Although the expert PERSON was present at the hearing on CARDINAL DATE , having been convened by the defence , ORG decided not to hear him . The reason given was that as an expert rather than a witness he could not be expected to contribute to the elucidation of the facts of the case . The witness N. was heard by ORG in the applicant 's presence and the applicant 's lawyer was given the opportunity to question him . PERSON said that his statement to the police had been untrue and that he did not in fact know the applicant . In pursuance of the court 's order of CARDINAL DATE that he be brought by force , the named witness NORP was present initially . It appears that before he was heard , he asked the court usher who was guarding him for permission to leave for TIME ; this being allowed him , he then disappeared and could not be found again . The court subsequently ordered that he be brought before it by force at its next hearing on DATE . ORG heard the expert PERSON , who stated that drug addicts often made unreliable statements concerning alleged drug dealers to the police . He understood from drug addicts that police officers made promises to them and that they made statements only in order to be allowed to leave as soon as possible . Such statements were , in his view , \" somewhere between the truth and a lie \" .", "ORG On DATE the investigating judge , Judge PERSON . , drew up a record of her findings regarding the reliability of the statements made to her by PERSON and PERSON on DATE . She stated in this document that she could not remember the faces of the CARDINAL witnesses , but having re - read the records of the interrogations could recall more or less what had happened . She had the impression that both witnesses knew whom they were talking about and had identified the applicant 's photograph without hesitation . With regard to the facts of which the applicant stood accused , her impression had been that the witnesses themselves believed their statements to be true . As far as she remembered , both witnesses had answered all questions readily and without hesitating although they had made a \" somewhat sleepy impression \" .", "ORG At ORG hearing on DATE , the witness NORP did not appear , the police having been unable to find him . The court thereupon decided that a new order for NORP 's appearance would be pointless . The procurator general brought forward a police officer , ORG , who had been involved in the investigation and asked that he be heard . The applicant 's lawyer protested that the expert PERSON had not been heard and that the defence had no opportunity to prepare for the questioning of ORG ; to agree to hear I. now would prejudice the rights of the defence . ORG nonetheless acceded to the request , and PERSON was heard concerning the way in which the investigation had been conducted . PERSON explained that from DATE until DATE he had been a member of a police team set up to fight drug trafficking in the centre of GPE . Over DATE that team had built up a good understanding with many of the drug addicts living in that area ; making use of that relationship , they had asked them for information on drug dealers . Their cooperation was wholly voluntary . I. denied that the police made promises to drug addicts or put pressure on them ; nor were photographs shown to addicts who had been arrested . In his assessment the statements made by drug addicts were therefore highly reliable . Moreover , action was only taken against alleged drug dealers if there were CARDINAL statements incriminating them . He further confirmed that it had happened in the past that convicted drug dealers , after serving their sentence , had threatened and assaulted drug addicts who had made incriminating statements against them . Although he had never known the applicant to resort to violence or threats , he did not rule out the possibility that he might do so . The defence challenged the reliability of the statements made by the various witnesses , both named and anonymous , pointing to what they considered to be inconsistencies among them . They objected particularly to the admission as evidence of the statements made by PERSON and PERSON , on the grounds , inter alia , that both were drug addicts and that the investigating judge 's record of her findings of DATE did not contain a statement that she believed that the witnesses had been telling the truth . Relying on the GPE v. GPE judgment of ORG DATE ( Series A no . CARDINAL ) , they moreover expressed doubts as to the impartiality of the investigating judge , Judge PERSON . , in that as a member of ORG she had taken part in the hearing of ORG of DATE and in the decisions then made . They protested against the refusal to hear PERSON", "ORG On DATE , ORG quashed ORG judgment of CARDINAL DATE , as it was adopting a different approach with regard to the evidence . It found the applicant guilty of the deliberate sale of quantities of heroin and cocaine . This finding was based on the following evidence :", "( a ) the fact , as appeared from the police records , that upon information that the applicant was engaged in drug trafficking his photograph was added to the collection of photographs of persons suspected of that offence ;", "( b ) the statements made before the investigating judge on DATE by ORG and PERSON ( see paragraph CARDINAL above ) ;", "( c ) the fact that on DATE the applicant had recognised himself on the police photograph ( see paragraph CARDINAL above ) ;", "( d ) the statements made to the police by the named witnesses PERSON and NORP ( see paragraph CARDINAL above ) .", "As regards the applicant 's complaint that the majority of the witnesses had not been heard in the presence of the applicant or his lawyer , the court stated that it had based its conviction on evidence given by the witnesses ORG , NORP , PERSON and PERSON .", "The latter CARDINAL had been questioned by the investigating judge in the presence of the applicant 's lawyer . ORG added that it had used their statements \" with the necessary caution and circumspection \" . It held that these statements could be used in evidence , in view , inter alia , of the consistency between them and the testimony of the police officer I. It also found that the reliability of the witnesses and the well - foundedness of their wish to remain anonymous had been sufficiently verified by the investigating judge . The witness ORG had been heard in open court both at first instance and on appeal . Although he had retracted his earlier statement to the police , that was the statement which ORG chose to believe in light of the testimony of the police officer ORG , the mere fact that the defence had not had the opportunity to question NORP did not mean that his statement could not be used in evidence . ORG rejected the applicant 's complaint based on the alleged lack of impartiality of Judge PERSON . It noted that the hearing on DATE had been summary ; ORG had only considered the applicant 's request to have the CARDINAL anonymous witnesses examined and his request for release . During that hearing ORG had not examined the substance of the applicant 's case . It did not appear , nor had it been argued , that Judge PERSON . had had any dealings with ORG and PERSON before questioning them . An investigating judge in any case did not have to provide the same safeguards as a member of a trial court . Furthermore , no particular facts or circumstances had been suggested or had come to light warranting the conclusion that she had not been able to form an unprejudiced opinion as to the reliability of the witnesses she had examined , or that she had been biased in her examination of those witnesses . The applicant was sentenced to DATE imprisonment . The time which he had spent in police custody and detention on remand was deducted from the sentence .", "ORG The applicant filed an appeal on points of law to ORG ( PERSON ) .", "Counsel for the applicant submitted a statement of grounds of appeal on DATE . The complaints put forward , in so far as relevant , were the following .", "In the first place , ORG ought not to have refused to hear the expert PERSON The fact that the court had chosen to hear I. at the behest of the prosecution , which had brought him forward at TIME , meant that the applicant had not had the possibility to obtain the attendance of a witness on his behalf under the same conditions as a witness against him . In addition , the court had failed to give sufficient reasons as to why the statement of PERSON could not serve the purpose of elucidating the facts , the court not having set out anything either in the record of the hearing or in its judgment with regard to the testimony that PERSON intended to give .", "In the second place , ORG ought not to have relied on the statements made by ORG and PERSON . It had ignored the wish of the defence to have them brought before the trial court in order that that court might itself see how unreliable they were and in order that the applicant might put questions to them in person .", "In the third place , ORG ought not to have taken account of the statement of NORP , whom the defence had not had the opportunity to question ; nor should it have decided after he had been allowed to abscond that there was no further point in attempting to obtain his attendance .", "In the fourth place , given the fact that the prosecution had brought forward the witness I. at the very last moment and without the defence having had any opportunity to prepare itself , ORG should have either declined to hear him or deferred his examination to DATE .", "In the fifth place , ORG ought not to have relied on witness statements taken by an investigating judge ( Judge PERSON . ) who had previously , as a member of a trial court and on the basis of the evidence then contained in the case file ( which included statements of all CARDINAL witnesses ) , taken part in a decision to prolong the applicant 's detention on remand . Judge PERSON . had , in his view , failed to preserve an appearance of impartiality .", "ORG In accordance with the advisory opinion of the advocate general ( advocaat - generaal ) , PERSON , the applicant 's appeal was rejected by ORG on DATE .", "As to the first complaint , ORG held that ORG had given sufficient reasons for not hearing PERSON , especially since the defence had not indicated in what way his statement might be relevant to any decision regarding the charges proffered . Nor had the applicant been denied a \" fair hearing \" in this respect ; it made no difference that , in spite of the protests made by the defence , ORG had given the prosecution the opportunity to have a witness heard without previously announcing its intention to bring him forward .", "As to the second complaint , it was held that the mere fact that a defendant in a criminal case was not able to question an anonymous witness himself but had to do so through his counsel did not constitute a violation of the right to a \" fair trial \" , guaranteed by LAW CARDINAL ( article CARDINAL ) of the LAW , or of the right protected by LAW CARDINAL ( d ) ( article CARDINAL - CARDINAL-d ) .", "As to the third complaint , ORG found that the reasoning on which ORG had based its decision to make no further attempts to have NORP brought before it was not unintelligible ; in any case , it could not assess the validity of that reasoning since this was mainly a question of appreciation of facts . In view of the fact that it had proved pointless to repeat attempts to have NORP brought before ORG by force and of the fact that his statement was sufficiently corroborated by other evidence , in particular the statement made by ORG to the police , ORG had been entitled to use his statement in evidence .", "As to the fourth complaint , it was held that ORG had not been bound to construe the protests put forward by the defence either as a request for an adjournment or as a defence plea requiring a reasoned decision .", "As to the fifth complaint , ORG concurred with ORG that there was no reason to assume that Judge PERSON . had lacked the required impartiality or that the applicant could have had any cause for so fearing . It continued :", "\" The mere fact that a judge who has been involved in adecision at first instance refusing requests made by thedefence to adjourn the hearing and to refer the case backto the investigating judge for the hearing of anonymouswitnesses and in decisions refusing requests for thetermination or suspension of detention on remand , hasafterwards , pursuant to an order of ORG , heard the said witnesses and given an opinion on thereliability of their testimony and on their reasons forremaining anonymous as a rule does not imply that onappeal the requirement of trial by an ` impartialtribunal ' in the sense of Article CARDINAL para . CARDINAL ( article CARDINAL - CARDINAL)has not been met . It does not appear from the case filethat there are any special circumstances which in thepresent case should lead to a different conclusion . \"", "ORG Except for the differences noted below ( see paragraphs CARDINAL and following ) , relevant domestic law and practice at the time of the criminal proceedings complained of were as set out in the ORG 's above - mentioned PERSON judgment of DATE . Reference is therefore made to that judgment , especially pp . CARDINAL - CARDINAL , paras . CARDINAL - CARDINAL . In so far as legal provisions relating to detention on remand are of relevance , reference is made to the ORG 's PERSON v. the GPE judgment of CARDINAL DATE ( Series A no . CARDINAL ) , pp . CARDINAL - CARDINAL , para . CARDINAL .", "ORG The public prosecutor has the power to call witnesses and experts to the hearing ( LAW ) . In his summons to the accused he gives a list of the witnesses and experts to be brought forward by the prosecution . If the accused wishes to call witnesses , he can - according to Article CARDINAL - submit a request to the public prosecutor no DATE before the court hearing to summon a witness before the court . As a rule , the public prosecutor should summon the witness , but - according to Article CARDINAL para . CARDINAL - he may refuse to do so if it is to be reasonably assumed that no prejudice to the rights of the defence will be caused if the witness is not heard in open court ( \" GPE redelijkerwijs QUANTITY worden aangenomen , dat de verdachte niet in zijn verdediging kan worden geschaad wanneer een door hem opgegeven getuige ... niet ter terechtzitting wordt gehoord \" ) . He has to give a reasoned decision in writing and must at the same time inform the defence of its right under Article CARDINAL para . CARDINAL ( see paragraph CARDINAL below ) to renew the request to the trial court at the hearing .", "ORG At the opening of the trial hearing the prosecutor hands to the court a list of all the witnesses called , which is then read out by the registrar ( griffier ) ( Article CARDINAL para . CARDINAL ) .", "ORG If the public prosecutor has failed to summon a witness at the request of the accused , or declined to do so , the defence may ask the court to have that witness summoned ( LAW para . CARDINAL ) . The court so orders , unless it finds that the non - appearance of this witness can not reasonably be considered prejudicial to the rights of the defence ( \" De rechtbank beveelt dat de ... getuige ... zal worden gedagvaard of schriftelijk opgeroepen , tenzij zij ... van oordeel is dat door het achterwege blijven daarvan de verdachte redelijkerwijs niet in zijn verdediging kan worden geschaad \" - Article CARDINAL para . CARDINAL ) .", "ORG A request by the defence to hear a witness who has not been placed on the list of witnesses , who has not been convened to attend the trial and whose summons the defence has not sought in accordance with LAW under LAW ORG ( see paragraph DATE below ) . It appears from the judgment of DATE by ORG that the trial court needs only accede to a request of this nature if it finds it necessary to do so .", "ORG Under LAW ORG the trial court has the power to order of its own accord the production of evidence , including the summoning of witnesses whom it has not yet heard .", "ORG If it finds that there is occasion to do so , the trial court may order that a witness be brought to its hearing by the police ( Articles CARDINAL para . CARDINAL and CARDINAL ORG ) .", "ORG If at the trial the trial court finds it necessary to have any factual question examined by the investigating judge , it must suspend the hearing and refer the question to the investigating judge along with the case file . The investigation carried out by the investigating judge in these cases is deemed to be a preliminary judicial investigation and is subject to the same rules ( LAW .", "ORG Appeal proceedings against the conviction or sentence at first instance involve a complete rehearing of the case . Both the prosecution and the defence may ask for witnesses already heard at first instance to be heard again ; they may also produce new evidence and request the hearing of witnesses not heard at first instance ( LAW ) . The defence enjoys the same rights as it does at first instance ( LAW ) .", "ORG In its judgment of DATE , PERSON ( ORG , \" GPE \" ) DATE , no . CARDINAL , ORG considered that it had to be assumed in light of ORG PERSON judgment that the use of statements by anonymous witnesses was subject to stricter requirements than those defined in its case - law until then . It defined these stricter requirements in the following rule : such a statement must have been taken down by a judge who ( a ) is aware of the identity of the witness , and ( b ) has expressed , in the official record of the hearing of such a witness , his reasoned opinion as to the reliability of the witness and as to the reasons for the wish of the witness to remain anonymous , and ( c ) has provided the defence with some opportunity to put questions or have questions put to the witness . This rule is subject to exceptions ; thus , according to the same judgment , the statement of an anonymous witness may be used in evidence if", "( a ) the defence have not at any stage of the proceedings asked to be allowed to question the witness concerned , and", "( b ) the conviction is based to a significant extent on other evidence not derived from anonymous sources , and", "( c ) the trial court makes it clear that it has made use of the statement of the anonymous witness with caution and circumspection .", "The Act of DATE , Staatsblad ( Official Gazette ) DATE , no . CARDINAL , has added to the ORG a number of detailed provisions relating to the \" protection of witnesses \" . It entered into force on DATE . The additions include the following . Article ORG now provides that the identity of a witness may remain secret if there is reason to believe that the disclosure of his identity may threaten his life , health , safety , family life or socio - economic existence and if the witness has made it clear that he does not wish to make any statement because of this . The decision is made by the investigating judge , who must first hear the prosecution , the defence and the witness himself . An appeal against the decision of the investigating judge lies to the trial court ( Article CARDINALb ) . The investigating judge may order that a threatened witness be heard in the absence of the accused , or of counsel , or of both , so as not to disclose the identity of the threatened witness ; in that event , the prosecution authorities may not attend the questioning of the witness either . The investigating judge must then allow the defence to put questions of its own to the witness , either through the use of telecommunication or in writing ( Article CARDINALd ) . Article CARDINAL now lays down that the prosecution may refuse to summon a threatened witness . If the trial court has ordered that a witness be heard and that witness turns out to be under threat , he must be heard in camera by the investigating judge ( Article CARDINAL para . CARDINAL ) . The statement of an anonymous witness taken in accordance with the above - mentioned provisions may only be used in evidence against a person accused of crimes in respect of which his detention on remand is permitted ( Article CARDINAL para . CARDINAL ( b ) ) . A new paragraph has been added to LAW effect that a statement of a person whose identity is not apparent may only be used in evidence if the conviction is based to a significant degree on other evidence and if the defence has not at any time during the trial sought to question that person or have him questioned ." ]

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[ "6" ]

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

[ "6-3-d" ]

[ "The applicant was born in DATE and lives in Şırnak .", "The facts surrounding the arrest and detention of the applicant are disputed between the parties .", "On an unspecified date , the applicant was contacted by CARDINAL persons in the centre of PERSON who asked him either to give them money or to help them . They did not specify what they wished the applicant to do . The applicant refused their request . On DATE , DATE after this incident , they again contacted the applicant , asked him to help them and threatened him with death . As the applicant was scared , he followed their instructions . He went near to a cemetery outside the city centre where CARDINAL armed men appeared . They asked him about the supplies and when the applicant told them that he did not know about the supplies , they beat him . Subsequently , CARDINAL other plain - clothes persons carrying weapons arrived . They tied the applicant ’s hands and covered his mouth . CARDINAL of them had a radio with which he talked to someone whom he addressed as “ my commander ” . The applicant was then blindfolded , put in a vehicle and taken to the Şırnak provincial gendarmerie command .", "During his detention in the custody of the gendarmerie the applicant was subjected to ill - treatment . In particular he was stripped naked and beaten . He was also deprived of food and water and was prevented from going to the toilet . The applicant was kept in a small and dark cell , threatened with death and insulted . Furthermore , the gendarmerie officers attempted to rape him .", "In TIME of DATE , the applicant ’s son , PERSON , applied to ORG claiming that his father left home at TIME to go to their farm and that he was seen by CARDINAL of their neighbours , PERSON , at around TIME being abducted by an armed group of CARDINAL persons . On DATE an official report was drawn up concerning PERSON claim .", "On DATE a similar protocol was drawn up containing Ömer Katar ’s statement about the applicant ’s arrest . He stated that he had seen the applicant being taken away by CARDINAL men who were carrying rifles . PERSON testified that PERSON hands were tied and that he was being beaten by these men .", "On DATE the applicant was brought before a forensic doctor , PERSON . The medical report drafted by the doctor at TIME on DATE referred to the following marks on the applicant ’s body : a bruise on the right shoulder , scratches and bruises on the front of his right arm , bruises on the right part of his back , bruises of QUANTITY on his waist , bruises on the front of his left arm , a bruise on the back of his left shoulder , bruises of CARDINAL x QUANTITY on his left hip and a trauma of QUANTITY on his parietal bone . All the bruises on the applicant ’s body were described as purple in colour .", "On DATE the gendarmerie officers drafted a document allegedly containing the applicant ’s statements , according to which the applicant admitted to have willingly acted as a courier for the ORG and have fallen and sustained other injuries while trying to escape from the gendarmerie officers on DATE , DATE of his arrest . The applicant was forced to apply his thumbprint to this document .", "On DATE the applicant was examined by the same doctor who noted the presence of the traces of old bruises on his shoulders and arms .", "On DATE the applicant was brought before the Şırnak public prosecutor . He denied the accusations against him . The statements that he had allegedly made at the gendarmerie command were read to him . The applicant denied that he had made these statements and maintained that he had been forced to sign them . He claimed that he had been threatened with death by CARDINAL men unless he delivered a bag to some people whose identity was not known to him .", "After being questioned by the public prosecutor he was brought before ORG ) , where he denied the charges against him . He further pleaded not guilty and reiterated his statement that he had made before ORG . ORG ordered the applicant ’s detention on remand . The court also took note of the applicant ’s allegation that he was threatened with death and decided to refer his complaint to the public prosecutor ’s office .", "On DATE the Şırnak public prosecutor issued a decision of non - jurisdiction in respect of the investigation against the applicant holding that the public prosecutor ’s office at ORG had the jurisdiction to conduct this investigation .", "On DATE the Şırnak public prosecutor decided to discontinue the investigation based on PERSON allegation . The public prosecutor found that the applicant had not been abducted as alleged by PERSON but taken into custody on DATE on suspicion of aiding the ORG .", "On DATE the applicant was arrested by officers from the Şırnak provincial gendarmerie command on suspicion of aiding the ORG . Although on DATE the applicant ’s son lodged a petition with the security directorate and on CARDINAL DATE the applicant ’s neighbour stated that he had seen the applicant being taken away by CARDINAL men , there is no statement indicating that the persons who abducted the applicants had been gendarmerie officers .", "According to the arrest report signed by CARDINAL gendarmerie officers , on DATE , at TIME , following information received by the gendarmerie officers the applicant was captured in a rural area while carrying a bag containing clothes that he was taking to members of the ORG . The applicant was told twice to stop by the officers but he tried to escape . While running , he fell , hit his head and sustained injuries to various parts of his body .", "On DATE , CARDINAL officers further drafted a scene of the incident report . According to this report , the applicant was captured at TIME following the receipt of information that the applicant was taking supplies to members of the ORG . The officers noted that the applicant had been carrying CARDINAL bags containing clothes , soap and a carpet and that he had sustained injuries when he fell from a height of QUANTITY . It is to be noted that neither the arrest report nor the scene of the incident report bears the signature of the applicant .", "Following his arrest , the applicant was examined by a doctor ( see paragraph CARDINAL above ) and , subsequently , taken to the Şırnak gendarmerie command where he made statements admitting that he had aided the members of the ORG . The applicant was kept in custody until DATE .", "On DATE the public prosecutor at ORG filed a bill of indictment charging the applicant with aiding and abetting an illegal organisation under LAW .", "The first hearing , held before ORG composed of CARDINAL judges including a military judge , on DATE , in the applicant ’s absence , was taken up with procedural matters , such as the measures to be taken for securing the presence of the accused .", "On DATE the applicant ’s representative stated before ORG that the applicant was arrested on DATE . He alleged that the protocols prepared by gendarmerie officers contained false information . He maintained that the medical report of DATE established the ill - treatment of the applicant received at the hands of gendarmerie officers . He further complained that the length of the applicant ’s detention was excessive . He made an oral complaint against the gendarmerie officers in relation to the ill - treatment of the applicant before ORG and requested the court to notify the public prosecutor ’s office concerning their complaint . In reply to the request of the applicant ’s representative ORG stated :", "“ It has been decided that the representative of the accused be authorised to lodge a complaint with the public prosecutor ’s office where the act took place and that the copy of the hearing TIME be provided if needed . ”", "On DATE , the first - instance court decided to request ORG to issue a summons requiring the gendarmerie officers who had signed the arrest and scene of the incident reports to give evidence .", "At the beginning of the hearing of CARDINAL DATE , ORG appointed an interpreter to assist the applicant , noting that he did not have a good command of the NORP language .", "On DATE , the applicant made statements before the court with the assistance of the interpreter . He maintained , inter alia , that he was at his farm on DATE of his arrest when CARDINAL persons arrived and asked him to give them money . When he refused their request , they beat him . Subsequently , they tied his hands and covered his mouth and took him to a place , where there were supplies . They then asked him to accept that the supplies belonged to him but he refused . The applicant further denied the accuracy of the arrest and scene of the incident reports . The first - instance court decided to postpone the hearing as the statements of the gendarmerie officers had not been taken . It further ordered the applicant ’s release pending trial .", "On DATE ORG postponed the hearing as the statements of the gendarmerie officers had not been taken .", "On DATE the statements of CARDINAL of the gendarmerie officers were read out . The applicant ’s lawyer maintained before the ORG that the contents of these statements and the arrest and scene of the incident reports were contradictory . The court once again postponed the hearing as it had not received the statements of CARDINAL gendarmerie officers .", "On an unspecified date , the statements of the CARDINAL officers were sent to ORG .", "On DATE GPE ’s ORG amended LAW and excluded military members from ORG . Following similar amendments made on DATE to the PERSON on ORG , the military judge sitting on ORG hearing the applicant ’s case was replaced by a civilian judge .", "At the hearing held on DATE , the public prosecutor read out his observations on the merits of the case . The hearing was postponed for the preparation of the applicant ’s final submissions on the merits of the case .", "At the hearing held on DATE the first - instance court heard the applicant ’s lawyer ’s final submissions on the merits of the case . On DATE , the court noticed that the applicant ’s statements of CARDINAL DATE had been taken without the bill of indictment having been read to him . The court therefore requested ORG to read out the bill of indictment to the applicant and to take his statements with the assistance of an interpreter .", "On an unspecified date the applicant made statements before ORG with the assistance of an interpreter . These statements were sent to ORG .", "At the hearing of CARDINAL DATE the public prosecutor and the applicant ’s lawyer made their final submissions on the merits of the case . The applicant ’s lawyer maintained , inter alia , that the applicant ’s arrest and the length of his detention in custody had been unlawful and that he had been subjected to ill - treatment while in custody .", "On DATE , ORG convicted the applicant of aiding and abetting the members of the ORG and sentenced him to DATE and QUANTITY months’ imprisonment . In its judgment , the court relied on the applicant ’s confession statements made in the custody of the gendarmerie , the statements of the gendarmerie officers who had drafted the arrest and scene of the incident protocols and the content of the bag that the applicant was allegedly carrying when he was arrested .", "The military judge sitting on the bench of ORG was present at CARDINAL preliminary hearing and QUANTITY hearings on the merits until DATE . After the replacement of the military judge with a civilian judge , the first - instance court held CARDINAL hearings before rendering its judgment in the case .", "On DATE the applicant appealed against the judgment of CARDINAL DATE .", "On DATE ORG dismissed the applicant ’s appeal and upheld the judgment of ORG .", "The relevant domestic law and practice in force at the material time are outlined in the following judgments : PERSON and Others v. GPE ( nos . LOC and QUANTITY , § § CARDINAL , ECHR CARDINAL ... ( extracts ) ) ; PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ; and PERSON v. GPE ( [ ORG ] , no . CARDINAL , § § PERSON , ECHR CARDINAL- ... ) ." ]

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

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

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[ "The applicant was born in DATE and lives in GPE .", "On DATE a ORG - owned bank requested the police to investigate whether a former bank director , ORG , had committed offences as the bank had advanced loans without acceptable guarantees to such an extent that its solvency was endangered . The bank also requested the police to investigate whether ORG or some other person had received unlawful financial inducements or whether blackmail had been involved .", "On DATE the bank supplemented its request maintaining that the applicant had possibly committed offences of dishonesty as a debtor , debt fraud or aggravated debt fraud during DATE , as he had allegedly participated in transferring bank shares owned by certain limited liability corporations into his own control , thereby causing CARDINAL of the ORG biggest creditors , the bank , financial losses of MONEY ( ORG ; equivalent to CARDINAL : ORG ) .", "On DATE the applicant was arrested . On DATE he was questioned by the police for the first time . On DATE the ORG ( käräjäoikeus , tingsrätten ) ordered his detention on remand since he was suspected of aggravated blackmail and CARDINAL counts of dishonesty as a debtor . He was released on DATE .", "On DATE the police completed their pre - trial investigation . A summons was served on the applicant on DATE . It was alleged that the offences had been committed DATE and DATE .", "On DATE the applicant was charged with aggravated fraud and CARDINAL counts of dishonesty as a debtor . On DATE the Salo ORG upheld the applicant ’s claim that he had not been legally summoned to the trial and declared the case against him inadmissible . On DATE ORG ( hovioikeus , hovrätten ) upheld the decision . On DATE ORG ( korkein oikeus , högsta domstolen ) quashed the previous decisions and remitted the case to ORG . Meanwhile , on DATE ORG also upheld a co - defendant ’s claim that he had not been lawfully summoned . On DATE ORG quashed the decision . On DATE ORG upheld ORG decision .", "Meanwhile , at the second hearing on DATE , the applicant was charged additionally with a count of aggravated fraud and incitement to dishonesty as a debtor . The public prosecutor thereafter added to the charges on several occasions .", "At the third hearing on DATE , the acting public prosecutor was found by ORG to be biased and a new prosecutor was assigned to the case .", "On DATE ORG upheld the applicant ’s claim that he had not been lawfully summoned ( as regards a summons delivered on DATE to his wife in GPE ) and that the statute of limitations had already expired . On DATE ORG quashed the decision and remitted the case to ORG . On DATE ORG upheld ORG decision .", "Meanwhile , on DATE ORG noted in its minutes that the parties were in disagreement as regards the question whether the “ reasonable time ” requirement according to LAW had been fulfilled , and that the court would decide at a later stage on whether the trial could continue .", "On DATE ORG issued a separate decision dismissing the applicant ’s request that the charges against him be declared inadmissible due to the excessive length of the proceedings . It held , inter alia , that the case was exceptionally difficult involving voluminous evidence and that it was of significant public interest .", "On DATE ORG dismissed the applicant ’s renewed request to that effect . On DATE he lodged a procedural complaint with ORG . It was dismissed on DATE .", "There were DATE of hearings in ORG up to DATE , held at CARDINAL months’ intervals . There were DATE of hearings which concerned the applicant in DATE , CARDINAL in DATE and CARDINAL in DATE .", "On DATE co - defendant X was granted immunity . On DATE the NORP Government consented to the continued prosecution of X in GPE whereupon he challenged the lawfulness of the consent . On DATE ORG gave a decision .", "On DATE and DATE ORG dismissed the applicant ’s further requests that the charges be ruled inadmissible owing to the length of the proceedings . On DATE ORG also dismissed the request of the applicant ’s co - defendants to that effect . ORG upheld the last - mentioned decision on DATE . On CARDINAL DATE ORG dismissed the applicant ’s renewed request that the charges be ruled inadmissible owing to the length of the proceedings .", "During the trial the police conducted CARDINAL additional investigations , the last of which , according to the Government , was completed on DATE .", "There had been a total of DATE of hearings DATE when ORG started to receive evidence . After that there were DATE of hearings up until DATE . On DATE ORG , noting at the outset that he lacked competence to interfere with the ongoing proceedings , drew the ORG ’s attention to the need for the allocation of adequate financial resources to ORG and to the authorities involved in the case .", "On DATE the ORG gave its judgment . It convicted the applicant of aggravated fraud . It dismissed as time - barred the charges concerning CARDINAL counts of dishonesty as a debtor . The court found that the “ reasonable time ” requirement laid down in the LAW and the LAW had not been respected and that the applicant was therefore entitled to redress . The court noted that it had dismissed as time - barred some of the charges . As the court was not allowed to pass any judgment on the time - barred charges , the redress for the length of the proceedings had to be given in some other way . Accordingly , the applicant ’s sentence had to be mitigated . The court considered that the redress had to be significant and , having regard to the exceptionally lengthy nature of the proceedings , it should also be substantial . The court stated that it was taking CARDINAL third off the applicant ’s sentence owing to the breach of the “ reasonable time ” requirement . Taking an earlier sentence into account , it sentenced the applicant to DATE and CARDINAL days’ imprisonment .", "The case is still pending before ORG ." ]

[ "6" ]

[ "6-1" ]

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[ "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was born in DATE in GPE . He entered GPE on DATE , when he was DATE , as a dependant of his father . He was granted indefinite leave to remain . He was educated in GPE and spent DATE there .", "On an unidentified date in DATE he was found guilty of the theft of an insurance document . On an unidentified date in DATE he was fined following a conviction for the use of a forged banker ’s draft .", "On DATE he was convicted by a ORG of involvement in the importation of a class A controlled drug . The conviction related to the attempted importation of QUANTITY of heroin with an estimated street value of GBP CARDINAL,CARDINAL.CARDINAL . The applicant pleaded guilty . In his sentencing remarks the judge noted that he was not the principal in the criminal activity but concluded that he was a “ knowledgeable , able and willing assistant ” . He was sentenced to DATE imprisonment but he was released on DATE because of his good conduct in prison .", "On CARDINAL DATE the Secretary of ORG for ORG served on the applicant a notice of decision to make a deportation order pursuant to section CARDINAL ( CARDINAL ) of LAW DATE . The Secretary of ORG regarded as particularly serious those offences involving violence , sex , arson and drugs . Therefore , in view of the nature and severity of the applicant ’s offence , the Secretary of ORG concluded that his removal from GPE would be necessary in a NORP society for the prevention of disorder and crime and for the protection of health and morals .", "The applicant appealed to an Immigration Judge . He indicated that he had been in GPE since he was DATE and was not familiar with the culture in GPE . All of his immediate family were in GPE . His mother and his siblings were all in poor health and he was the main person who kept the house clean . His mother had diabetes and a heart condition . His siblings suffered from asthma and/or eczema . The applicant suffered from ulcerative colitis for which he received treatment in GPE . He therefore submitted that his removal would be disproportionate in the circumstances and would violate his rights under LAW .", "On DATE an Immigration Judge dismissed the applicant ’s appeal against the deportation order . He agreed that the applicant ’s deportation would be conducive to the public good and that the crime he had committed was sufficiently serious to warrant deportation . With regard to the applicant ’s family life in GPE , he found that it did not go beyond the natural ties of affection . In particular , he noted that the family had managed to cope without the applicant while he was in prison . He also found that the applicant would be able to adapt to life in GPE . He relied on the fact that he was an unemployed , single man of DATE of age who , apart from having ulcerative colitis , was in good health . It was accepted that he could speak NORP . Moreover , the Immigration Judge observed that the medical evidence suggested that the applicant ’s attendance at hospital for treatment of his ulcerative colitis had been inconsistent and he could therefore continue to attend hospital sporadically in GPE .", "On DATE ORG made no order on his application for reconsideration . A Senior Immigration Judge noted that the applicant had been sentenced to CARDINAL years’ imprisonment for his involvement in the importation of heroin and the ORG was entitled to find that this was a very serious matter and sufficiently serious of itself to warrant deportation .", "On DATE ORG dismissed his application for reconsideration of the Immigration Judge ’s decision as it did not disclose any arguable error of law and an appeal would have no real prospect of success .", "On DATE the applicant ’s representative wrote to ORG , indicating that the applicant had been receiving death threats from CARDINAL of his co - defendants in the drugs offence . The co - defendant was believed to be living in GPE . The applicant therefore submitted that if returned there was a real risk that his life would be in danger . He further submitted that in view of his mother ’s ill health , if he were deported then in all likelihood he would not see her again .", "On DATE the Secretary of ORG for ORG advised the applicant that he would not consider the new representations as a fresh claim for asylum . In particular , the Secretary of ORG noted that the late asylum claim damaged the applicant ’s credibility as the first threatening phone call was allegedly received in DATE .", "In a letter dated CARDINAL DATE the applicant advised ORG that his NORP girlfriend was pregnant and due to give birth to their child on DATE . He submitted a statement by his girlfriend , in which she confirmed that she was pregnant and stated that she had been in a relationship with the applicant since DATE . On DATE the applicant advised the ORG that his girlfriend had given birth to a baby girl . He subsequently submitted a birth certificate , which named him as the father .", "Section CARDINAL(CARDINAL)(a ) of LAW DATE ( as amended by ORG ) provides that a person who is not a NORP citizen shall be liable to deportation from GPE if the Secretary of ORG for ORG deems his deportation to be conducive to the public good . Sections CARDINAL(CARDINAL ) and CARDINAL of the Nationality , Immigration and Asylum Act DATE provide for a right of appeal against this decision on the grounds , inter alia , that the decision is incompatible with the Convention .", "Section CARDINAL of LAW DATE provides that , in determining any question that arises in connection with a Convention right , courts and tribunals must take into account any case - law from this ORG so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen .", "The Rules relating to the revocation of a deportation order are contained in CARDINAL of ORG CARDINAL ( as amended ) , supplemented by LAW ( “ IDIs ” ) . There is no specific period after which revocation will be appropriate although ORG to LAW of the IDIs gives broad guidelines on the length of time deportation orders should remain in force after removal . Cases which will normally be appropriate for revocation DATE after deportation include those of overstayers and persons who failed to observe a condition attached to their leave , persons who obtained leave by deception , and family members deported under LAW ) of LAW DATE . With regard to criminal conviction cases , the normal course of action will be to grant an application for revocation where the decision to deport was founded on a criminal conviction which is now “ spent ” under section CARDINAL(CARDINAL ) of the Rehabilitation of Offenders Act DATE . Paragraph CARDINAL of the Rules , however , indicates that in the case of an applicant with a serious criminal record continued exclusion for a long term of years will normally be the proper course . This is expanded on in GPE A to LAW of the IDIs , which indicates that revocation would not normally be appropriate until DATE after departure for those convicted of serious offences such as violence against the person , sexual offences , burglary , robbery or theft , and other offences such as forgery and drug trafficking ." ]

[ "8" ]

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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 brought proceedings before the GPE ORG for compensation against the ORG PERSON ( ORG ) company and applied for legal aid . He submitted that on DATE his right leg was pinned by the closing doors of a train carriage of that company . The applicant , who already suffered from reduced mobility , claimed to have sustained serious physical injuries and damage to his mental health thereby .", "On DATE ORG held a hearing .", "On DATE ORG dismissed the applicant ’s request to be sent train tickets in order to be able to attend another hearing . That decision was quashed on appeal .", "On DATE ORG heard CARDINAL witnesses .", "On ORG request of CARDINAL DATE , a NORP court heard another witness on commission on DATE .", "On DATE the GPE ORG , having held another hearing , ordered the defendant to pay the applicant by way of compensation for non - pecuniary damage CARDINAL ORG ) , representing PERCENT of the damages claimed . The remainder of the claim was not allowed as the applicant had been contributorily negligent . The defendant was also ordered to reimburse costs the applicant had incurred for a medical certificate ORG ) . The court further declared that the defendant was to compensate the applicant for MONEY of the future loss he would incur as a result of the accident on DATE and dismissed the remainder of the applicant ’s action .", "On DATE the applicant lodged an appeal against the judgment of the GPE ORG , for which he submitted detailed reasons on DATE .", "He was subsequently granted legal aid for counsel different from his representation at first instance . Legal aid was later extended to cover a change of legal aid lawyer .", "On DATE and on DATE the applicant extended his initial action . He claimed the payment of further compensation for non - pecuniary damage as he was now obliged to use a wheelchair and suffered from allergies and asthma as a result of the accident .", "On DATE ORG , having held a hearing , requested forensic expert PERSON to submit a report by consulting also an expert for accident analysis ( PERSON ) and a psychiatric expert , on the question whether the applicant had suffered the damage he now claimed through the accident on DATE . It refused to grant the applicant legal aid in respect of his additional claims .", "On DATE experts PERSON submitted their report giving advice on accident analysis and informed the court that they were not in a position to give a psychiatric expert opinion .", "On DATE ORG ruled the applicant ’s motion for bias against expert PERSON inadmissible as it had been lodged out of time .", "On DATE , when ORG also held a hearing , and on DATE a different bench of ORG dismissed motions for bias lodged by the applicant on CARDINAL and DATE and CARDINAL DATE as ill - founded .", "On DATE ORG appointed a psychiatric expert .", "On DATE and on DATE ORG dismissed repeated requests by the applicant for legal aid to mandate a new lawyer .", "On DATE ORG dismissed another motion for bias lodged by the applicant on DATE .", "As the applicant had repeatedly failed to attend examinations the dates of which had been fixed with the court - appointed psychiatric expert until DATE , ORG decided not to consult that expert .", "On DATE ORG , having held another hearing , partly quashing the judgment of ORG , held that the defendant was to pay the applicant DEM CARDINAL in compensation for non - pecuniary damage and dismissed the remainder of the applicant ’s action . Contrary to ORG view , ORG , having regard to the report submitted by experts PERSON , found that the applicant had not been physically injured by the accident . The applicant ’s numerous confused submissions had led the court to consider whether the applicant was mentally capable of involvement in proceedings . However , as he had refused to present himself for a psychiatric examination , the court was not able to come to any conclusions on the point . The court found that the applicant had failed to prove that the accident had any long - term consequences for his mental health . ORG itself dismissed further motions for bias dated DATE and DATE as inadmissible , as they merely referred to the applicant ’s previous motions which had already been rejected .", "The judgment was served on the applicant ’s recently appointed counsel on DATE .", "On DATE ORG rejected the request of the applicant , represented by counsel , to be granted legal aid in order to lodge a complaint against the refusal to grant him leave to appeal on points of law . It found that the applicant ’s complaint did not have sufficient prospects of success . On DATE ORG dismissed the applicant ’s objection of DATE to its decision of CARDINAL DATE .", "On DATE ORG dismissed a complaint by the applicant about the refusal to grant him leave to appeal against the judgment of ORG . It found that the complaint was inadmissible as the applicant had failed to submit reasons for it within the statutory time - limit .", "On DATE and on DATE the applicant lodged a complaint about the judgments of ORG and ORG and the CARDINAL decisions of ORG with ORG . He submitted , inter alia , that the civil proceedings had been unreasonably long and had been unfair for several reasons . In particular , ORG and ORG had refused to grant him legal aid . ORG had further based its decision on a report which a partial expert had not drawn up in due form . Moreover , only his lawyer had received the summons for hearings and copies of the judgments .", "On DATE ORG declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . It found , without giving further explanations , that the complaint was inadmissible .", "The applicant received the decision on DATE ." ]

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[ "The applicant is an NORP national , born in DATE . He is a practising lawyer and lives in GPE , GPE .", "The applicant instituted proceedings against ORG , claiming compensation under the law of torts , on the grounds that CARDINAL of the ORG ’s legally trained employees had made an incorrect declaration in DATE which was instrumental in ORG finding that a certain claim was no longer enforceable . As ORG found for the defendant bank , the applicant , by a summons of CARDINAL DATE , instituted appeal proceedings before ORG .", "In the course of the proceedings before ORG the applicant was given various dates DATE and DATE within which to complete his submissions and the respondent ORG was given until DATE to submit its reply . Subsequently the hearing was scheduled to open on DATE . Meanwhile , sometime DATE and DATE , the case was included in ORG docket .", "By a judgment of DATE , ORG , by CARDINAL votes to CARDINAL , rejected the applicant ’s claim . The minority found that the applicant ’s claim should be upheld and that ORG was liable to pay him ORG CARDINAL NORP krónur ( ISK ) in compensation , plus default interest from DATE .", "One of the CARDINAL judges forming the majority was PERSON . The applicant submitted that after the delivery of ORG judgment , it came to light that PERSON ORG and her husband , a ORG lawyer , had a financial relationship with ORG of such a nature as to disqualify her from sitting in the applicant ’s case .", "In DATE Mr PERSON , husband of PERSON , had sought a solution to certain financial problems arising from the inability of a debtor , Mr PERSON , to pay certain debts with respect to which PERSON was one of the guarantors , and the inability of other guarantors to honour the guarantee . In DATE CARDINAL creditors , CARDINAL of which was ORG , possessed claims under the guarantees amounting to approximately ORG CARDINAL,CARDINAL,CARDINAL . This included a claim of QUANTITY by ORG . Another large creditor was ORG which , on behalf of ORG – “ the ORG ” ) , held a claim of approximately ORG CARDINAL .", "NORP In order to solve these problems PERSON attempted to reach a settlement with each of the creditors . An economic consultant company , PERSON , agreed to examine his financial situation and to look into the possibilities of obtaining full settlement against partial payment , starting with the CARDINAL largest creditors and thereafter opening negotiations with the smaller ones , to be completed within DATE .", "A settlement request made by the company to ORG lawyer on DATE , included the following observations :", "“ ... PERSON has informed us that he had , for the sake of friendship , provided guarantees with respect to Mr Lövdahl ’s debts , as they have been friends for DATE . He also informs us that he owns no property , and that he will foreseeably have to answer for guarantees on account of Mr Lövdahl in an amount of approximately ISK CARDINAL . His other liabilities amount to approximately ORG CARDINAL around ISK CARDINAL of which are taxes . Mr PERSON wife owns [ CARDINAL ] real properties ... [ These ] are owned by her separately under their marriage agreement dating from DATE . She has declared her readiness to use their net value by mortgage or sale for settling the debts , provided that PERSON is released from his personal guarantees and that his bankruptcy is avoided .", "We consequently ask you to recommend to your client , ORG , acceptance of PERCENT in final settlement of the total debt to which PERSON must answer as surety . This would release him from his surety liability . The payment would be made simultaneously with the signature of an agreement to this effect . ”", "On DATE , in order to obtain funds to pay the creditors , the judge ’s husband PERSON issued CARDINAL debt certificates to Landsbréf hf , PERSON ( Landsbréf , FAC of ORG , a financial institution owned by ORG ) , totalling approximately ORG CARDINAL . The debts were secured on CARDINAL properties owned by PERSON , namely the couple ’s main residence and CARDINAL apartment in which her husband had his law office .", "On DATE Landsbréf sold the above CARDINAL debt certificates to PERSON ( ORG – “ the ORG ” ) , a company specialising in high - risk investments . Ever since , the CARDINAL debt certificates have been in that company ’s ownership .", "On DATE , in accordance with a settlement agreement of the same date between ORG and PERSON , he paid approximately ORG CARDINAL , of which ORG CARDINAL were towards his debts to ORG and the remainder covering his lawyer ’s fees . Moreover , under the terms of the settlement agreement with the bank , he was released from ORG CARDINAL of debts originating in his guarantees for Mr ORG debts , which amounted to ORG CARDINAL . The above settlement was in conformity with a decision taken on DATE by ORG .", "As regards the state of PERSON debts vis - à - vis ORG , the Government relied on the following information provided on DATE by the head of the bank ’s legal department :", "“ ORG hereby confirms that a settlement agreement was concluded with PERSON on DATE concerning his undertakings to guarantee the payment of debts to ORG , by which the ORG cancelled PERCENT of its claims against PERSON against a final payment of PERCENT . We confirm that the ORG did not extend a new credit to PERSON for the said PERCENT .", "On DATE Mr PERSON ’s total debts to the ORG amounted to ORG CARDINAL ; his debts that did not come under the settlement agreement were a note issued CARDINAL DATE in the amount of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL , and a suretyship obligation for payment of a loan originally in the amount of ORG CARDINAL,CARDINAL , which was not in arrears ( remaining amount as at DATE : ISK CARDINAL ) .", "Mr PERSON total debts on DATE were a note issued CARDINAL DATE , in the amount of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL , and a suretyship obligation for payment of a loan originally in the amount of LAW , which was not in arrears ( remaining amount as at DATE ORG CARDINAL,CARDINAL ) . ”", "Under an agreement concluded on DATE ORG too decided to cancel PERCENT of its claim against a final payment of PERCENT by Mr PERSON .", "The fact that the CARDINAL largest creditors had accepted the settlement arrangements described above was of significant help in PERSON efforts to obtain settlement agreements with other creditors , all or most of whom accepted debt cancellation against partial payment .", "NORP The applicant submitted that there was evidence that on DATE the debts of the husband of PERSON towards ORG amounted to more than ORG CARDINAL,CARDINAL,CARDINAL . Moreover , in DATE , at the time when ORG gave its judgment , the debts in question apparently amounted to approximately ORG CARDINAL .", "The applicant lodged CARDINAL petitions to ORG requesting the reopening of the proceedings in his case against ORG on the ground of PERSON alleged lack of impartiality .", "The first petition was submitted to ORG on DATE . ORG , sitting as a full court , unanimously rejected it on DATE . Its decision reads :", "“ In support of his assertion relating to the disqualification of ORG Judge PERSON , the petitioner refers to CARDINAL debt certificates issued to the name of ORG , which are secured by mortgage upon CARDINAL real estates owned by the judge . By reason of ORG ownership of PERSON , the petitioner considers that this situation disqualified the judge from adjudicating the case . The secured debts in question amount to a total of ORG CARDINAL which , as stated in the certificates , corresponds to PERCENT of the total assessed sale price of the properties . The certificates were issued in DATE for DATE . The petitioner does not maintain that the certificates are in arrears .", "It is shown from the information provided by the lawyer for ORG that the debt certificates are not , and were not at the time when the case was being considered by ORG , in the ownership of ORG , ORG or any [ other ] company linked to the ORG . Mortgages on the said properties referred to in the petition , which now have been struck out of the records , and secure debts due to other parties are deemed irrelevant here .", "Although the above - mentioned letter of [ the applicant ] does not refer to the particular statutory provisions authorising the reopening of proceedings , it is to be assumed that the petition is based on section CARDINAL of LAW , Law no . CARDINAL/CARDINAL . The petitioner has not referred to any new fact or adduced any new evidence having a bearing on the merits of the case , cf . section CARDINAL(CARDINAL ) , subparagraphs ( a ) and ( b ) of PERSON no . CARDINAL/CARDINAL .", "In the light of the above consideration concerning the said mortgages , none of the conditions which provide the petitioner with a reason to believe that the said judge was not impartial and therefore disqualified from adjudicating the case have been fulfilled , cf . section CARDINAL , subsections ( CARDINAL ) and ( CARDINAL ) , of LAW , PERSON no . CARDINAL ; section CARDINAL , subsection ( g ) of PERSON no . CARDINAL/CARDINAL , LAW ( no . CARDINAL/CARDINAL ) , cf . section CARDINAL of LAW no . CARDINAL/CARDINAL , and LAW , cf . Law no . CARDINAL/CARDINAL . Accordingly , since the legal conditions for granting the petitioner ’s request for reopening of the proceedings have not been fulfilled , the request is rejected . ”", "NORP The applicant submitted that , after ORG had given its decision of DATE in the first revision case , he realised that PERSON Justice PERSON husband had additional financial ties with ORG . During the period from DATE to DATE he had assumed large - scale financial obligations vis - à - vis the bank and for DATE his debts to the bank had been seriously in arrears . According to the applicant , although this could not be affirmed with certainty , it was possible that ORG had released PERSON husband from a debt of over LAW .", "On DATE the applicant filed a new petition with ORG , asking for the reopening of his compensation case . ORG rejected the petition on DATE on the ground that , under the relevant provisions of LAW , a party may apply only once for re - examination of a case .", "At the material time of the present case a general rule on the disqualification of judges was contained in LAW DATE ORG , which read :", "“ A judge ... is disqualified from handling a case if :", "...", "g. Other facts or conditions are at hand which are capable of casting doubt on his impartiality on reasonable grounds . ”", "The Government have further pointed to a provision in section CARDINAL(CARDINAL ) of the LAW on ORG no . CARDINAL:CARDINAL ) , which provides :", "“ A judge of ORG shall withdraw if :", "...", "His attitude to a party or to the matter in dispute is such as to present a risk that he will not be able to examine the case in an impartial manner . ”", "Section CARDINAL(CARDINAL ) of that PERSON provides that the court shall decide in plenary session whether a judge is prevented on grounds of lack of impartiality from participating in a given case . It is open to the parties to challenge the participation of a judge on such grounds .", "Subsequent to the events at issue in the present case , a new PERSON on the ORG was enacted in DATE ( Law no . CARDINAL ) , which in section LOC ) contains the following provision aimed at codifying a practice that applied at the time of the case :", "“ A request by a judge not to be assigned to deal with a particular case may be granted by reason of the judge ’s relationship to the subject matter , the parties , their non - legal representative or their lawyer , even if the judge can not be deemed to be disqualified from handling the case , provided that the judge ’s request is duly reasoned and another judge of the court is available . ”" ]

[ "6" ]

[ "6-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "NORP The events , as described by the parties and related in the relevant documents , unfolded on DATE in the following manner .", "On TIME the applicant was taken to police station no . CARDINAL of ORG in LOC of GPE ( “ the police station ” ) for the purpose of establishing how he had managed to take his girlfriend PERSON into a restricted military compound .", "At the police station the applicant was firstly taken to the office of the passport service . He was drunk and verbally abusive towards the passport desk employee PERSON and the head of the road traffic department Captain S. The applicant ignored the reprimands and warnings issued to him . After pushing Captain S. and attempting to leave , he was handcuffed . The police officers considered that the applicant ’s conduct amounted to the administrative offence of minor disorderly acts .", "The applicant was taken to the office of Major PERSON , the head of the police station . Major PERSON drafted a report on the applicant ’s disorderly conduct which read as follows :", "“ This report has been drawn up by Major PERSON , head of police station no . CARDINAL , VoronezhCARDINAL , to record the fact that on DATE at TIME , who had been brought to police station no . CARDINAL with PERSON , whom he had taken into the closed military compound unlawfully , uttered obscenities at police officers and the head of [ unreadable ] , did not respond to reprimands , ignored requests by police officers to end the breach of public order , attempted to escape from police premises and was handcuffed , that is to say , he committed the administrative offences set out in Articles CARDINAL and CARDINAL of LAW . ”", "Captain PERSON and Lieutenant - Colonel PERSON were also present in the office while Major PERSON was drafting the report . The applicant became verbally abusive towards Major PERSON and threatened him with physical violence . He again attempted to leave and kicked over a chair .", "After the report was completed the applicant was placed in a car to be taken to the LOC district police station ( ROVD ) . The driver PERSON L. , Major PERSON , Lieutenant - Colonel PERSON and PERSON rode in the same car . On the way , the applicant continued to swear at Major PERSON and threatened to kill him for bringing administrative proceedings against him .", "On DATE ORG found the applicant guilty of an offence under LAW ( RSFSR ) , on the following grounds :", "“ Zolotukhin swore in a public place and did not respond to reprimands . ”", "The applicant was sentenced to CARDINAL days’ administrative detention . The judgment indicated that the sentence was not amenable to appeal and was immediately effective .", "On DATE a criminal case was opened against the applicant on suspicion of his having committed “ disorderly acts , including resisting a public official dealing with a breach of public order ” – an offence under LAW ( b ) of LAW of GPE – on DATE at the police station . On DATE , the applicant was taken into custody . On DATE CARDINAL further sets of proceedings were instituted against the applicant on other charges .", "On DATE the applicant was formally indicted . The relevant parts of the charge sheet read as follows :", "“ On TIME Mr Zolotukhin was taken to police station no . CARDINAL in LOC of GPE , for elucidation of the circumstances in which his acquaintance PERSON had entered the territory of the closed military compound Voronezh-CARDINAL . In the passport office at police station no . CARDINAL Mr GPE , who was inebriated , flagrantly breached public order , expressing a clear lack of respect for the community , and began loudly uttering obscenities at those present in the passport office , namely PERSON , a passport official in the housing department of military unit DATE , and Captain PERSON , head of the road traffic department in police station no . CARDINAL ; in particular , he threatened the latter , in his capacity as a police officer performing official duties , with physical reprisals . Mr Zolotukhin did not respond to Captain PERSON lawful requests to end the breach of public order ; he attempted to leave the premises of the passport office , actively resisted attempts to prevent his disorderly conduct , provided resistance to Captain PERSON , pushing him and pulling out of his reach , and prevented the passport office from operating normally .", "Hence , through his intentional actions Mr Zolotukhin engaged in disorderly acts , that is to say , a flagrant breach of public order expressing clear disrespect towards the community , combined with a threat to use violence , and resisting a public official dealing with a breach of public order ; the above amounts to the offence set out in LAW ( b ) of LAW .", "As a result of his disorderly behaviour , Mr Zolotukhin was taken to the office of Major PERSON , head of police station no . CARDINAL , NORP district , GPE , who was present in his official capacity , so that an administrative offence report could be drawn up . [ Major ] PERSON , in performance of his official duties , began drafting an administrative offence report concerning Mr GPE , under LAW and CARDINAL of LAW . Mr GPE , seeing that an administrative offence report was being drawn up concerning him , began publicly to insult [ Major ] PERSON , uttering obscenities at him in his capacity as a police officer , in the presence of Lieutenant - Colonel PERSON , assistant commander of military unit DATE , and Captain PERSON , head of the road traffic department in police station no . CARDINAL , thus intentionally attacking the honour and dignity of a police officer . Mr GPE deliberately ignored Major PERSON ’s repeated requests to end the breach of public order and insulting behaviour . Mr GPE then attempted to leave the office of the head of the police station without permission and kicked over a chair , while continuing to direct obscenities at Major PERSON and to threaten him with physical reprisals .", "Hence , Mr Zolotukhin intentionally and publicly insulted a public official in the course of his official duties , that is to say , he committed the offence set out in LAW of LAW .", "After the administrative offence report had been drawn up in respect of PERSON GPE , he and PERSON were placed in a vehicle to be taken to the LOC police station in the GPE region . In the car , in the presence of PERSON , ORG , assistant commander of military unit DATE , and the driver [ Mr ] L. , Mr GPE continued intentionally to attack the honour and dignity of Major PERSON , who was performing his official duties , uttering obscenities at him in his capacity as a police officer and thus publicly insulting him ; he then publicly threatened to kill Major PERSON , the head of police station no . CARDINAL , for bringing administrative proceedings against him .", "Hence , by his intentional actions , Mr Zolotukhin threatened to use violence against a public official in connection with the latter ’s performance of his official duties , that is to say , he committed the crime set out in LAW .", "On DATE ORG delivered its judgment . As regards the offence under LAW of LAW , ORG acquitted the applicant for the following reasons :", "“ On TIME in ... police station no . CARDINAL [ the applicant ] , in an inebriated state , swore at ... PERSON and Captain S. , threatening to kill the latter . He refused to comply with a lawful request by PERSON , ... behaved aggressively , pushed [ Captain ] S. and attempted to leave . Having examined the evidence produced at the trial , the court considers that [ the applicant ’s ] guilt has not been established . On DATE [ the applicant ] was subjected to CARDINAL days’ administrative detention for the same actions [ characterised ] under ORG CARDINAL and CARDINAL of LAW . No appeal was lodged against the judicial decision , nor was it quashed . The court considers that there is no indication of a criminal offence under LAW ( b ) in the defendant ’s actions and acquits him of this charge . ”", "ORG further found the applicant guilty of insulting a ORG official under LAW . It established that the applicant had sworn at Major PERSON and threatened him while the latter had been drafting the report on the administrative offences under LAW and CARDINAL of LAW in his office at the police station . Major PERSON ’s statements to that effect were corroborated by depositions from Captain PERSON LieutenantColonel N. and PERSON , who had also been present in Major PERSON ’s office .", "Finally , ORG found the applicant guilty of threatening violence against a public official under LAW . On the basis of the statements by Major PERSON , Lieutenant - Colonel PERSON and the applicant ’s girlfriend it found that , after the administrative offence report had been finalised , the applicant and his girlfriend had been taken by car to the LOC district police station . In the car , the applicant had continued to swear at Major PERSON He had also spat at him and said that , once released , he would kill him and abscond . Major PERSON had perceived the threat as real because the applicant had a history of abusive and violent behaviour .", "On DATE ORG , in summary fashion , upheld the judgment on appeal .", "LAW provides that “ no one may be convicted twice for the same offence ” ( LAW ) .", "The Code of Criminal Procedure establishes that criminal proceedings should be discontinued if there exists a final judgment against the suspect or defendant concerning the same charges or a decision by a court , investigator or examiner to discontinue the criminal case concerning the same charges or not to institute criminal proceedings ( LAW and CARDINAL ) .", "Article CARDINAL of LAW ( in force at the material time ) read as follows :", "“ Minor disorderly acts , that is , utterance of obscenities in public places , offensive behaviour towards others and other similar acts that breach public order and peace , shall be punishable by a fine of DATE wages or by CARDINAL to CARDINAL months’ correctional work combined with the withholding of MONEY of the offender ’s wages , or – if , inoffender ’s character , these measures are not deemed to be adequate – by CARDINAL days’ administrative detention . ”", "LAW of the Russian Federation ( version in force at the material time ) , in so far as relevant , read as follows :", "“ CARDINAL . NORP Disorderly acts , that is , serious breaches of public order or flagrant displays of disrespect towards the community , combined with the use of violence towards individuals or the threat to use violence or destroy or damage the property of others , shall be punishable ... by CARDINAL years’ deprivation of liberty .", "NORP The same acts , if committed", "...", "( b ) DATE while resisting a public official or another person fulfilling his or her duty to maintain public order or dealing with a breach of public order ...", "– shall be punishable by CARDINAL mandatory work or by CARDINAL years’ correctional work or CARDINAL years’ deprivation of liberty . ”", "“ The use of violence not endangering life or health , or the threat to use such violence against a public official or his relatives in connection with the performance of his or her duties shall be punishable by a fine of CARDINAL months’ minimum wages ... or by CARDINAL months’ detention or up to five years’ deprivation of liberty ... ”", "“ Publicly insulting a public official in the performance of his or her duties or in connection with the performance thereof shall be punishable by a fine of CARDINAL months’ minimum wages , ... QUANTITY work or DATE correctional work . ”", "In Resolution no . CARDINAL of CARDINAL DATE ( with subsequent amendments ) , ORG ruled that in cases where an administrative charge of minor disorderly acts had been brought against a defendant , but his or her actions were socially dangerous enough to be considered a crime , criminal proceedings should be brought against him or her under Article CARDINAL of FAC ( replaced by LAW after DATE ) ( § CARDINAL ) . In ORG no . CARDINAL of DATE ( with subsequent amendments ) , ORG held that the lower courts should not interpret the criminal prohibition of disorderly acts extensively , in order to exclude the criminal conviction of defendants charged only with the administrative offence of minor disorderly acts ( § CARDINAL ) .", "Article CARDINAL § CARDINAL of LAW provides as follows :", "“ No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country . ”", "Article CARDINAL of the Statute of ORG provides as follows :", "“ CARDINAL . Except as provided in this Statute , no person shall be tried before the ORG with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the ORG .", "No person shall be tried by another court for a crime referred to in LAW which that person has already been convicted or acquitted by the ORG .", "No person who has been tried by another court for conduct also proscribed under LAW shall be tried by the ORG with respect to the same conduct unless the proceedings in the other court :", "( a ) were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the ORG ; or", "( b ) otherwise were not conducted independently or impartially in accordance with the norms of due process recognised by international law and were conducted in a manner which , in the circumstances , was inconsistent with an intent to bring the person concerned to justice . ”", "Article CARDINAL of the Charter of Fundamental Rights of ORG , which was solemnly proclaimed by ORG , ORG in GPE on DATE ( ORG CARDINAL.CARDINAL.CARDINAL , C CARDINAL/CARDINAL ) , reads as follows :", "“ No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the ORG in accordance with the law . ”", "Article CARDINAL of LAW of DATE ( “ the ORG ” ) provides as follows :", "“ A person whose trial has been finally disposed of in CARDINAL ORG may not be prosecuted in ORG for the same acts provided that , if a penalty has been imposed , it has been enforced , is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing ORG . ”", "ORG of ORG ( “ the CJEU ” ) has recognised the non bis in idem principle as a fundamental principle of Community law ( ORG ) and ORG of ORG , Joined Cases C-CARDINAL/CARDINAL P , CCARDINAL/CARDINAL P , C-CARDINAL/CARDINAL P , C-CARDINAL/CARDINAL P , C-CARDINAL/CARDINAL P to C-CARDINAL/CARDINAL P and CCARDINAL/CARDINAL P , § DATE , DATE ) :", "“ ... the principle of non bis in idem , which is a fundamental principle of Community law also enshrined in LAW No . CARDINAL to the ORG [ the Convention ] , precludes , in competition matters , an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti - competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision . ”", "In the area of competition law the ORG applied the following approach to testing compliance with the non bis in idem principle ( ORG and ORG of ORG , Joined Cases C-CARDINAL/CARDINAL P , C-CARDINAL/CARDINAL P , C-CARDINAL/CARDINAL P , ORG , C-CARDINAL/CARDINAL P and ORG , § CARDINAL , DATE ) :", "“ As regards observance of the principle ne bis in idem , the application of that principle is subject to the threefold condition of identity of the facts , unity of offender and unity of the legal interest protected . Under that principle , therefore , the same person can not be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset . ”", "The CJEU ’s case - law on police and judicial cooperation in criminal matters is based on a different interpretation of “ idem ” ( PERSON , Case C-CARDINAL/CARDINAL , DATE ) :", "“ CARDINAL . In the first place , however , the wording of LAW ORG , ‘ the same acts’ , shows that that provision refers only to the nature of the acts in dispute and not to their legal classification .", "It must also be noted that the terms used in that Article differ from those used in other international treaties which enshrine the ne bis in idem principle . Unlike LAW of the ORG , LAW use the term ‘ offence’ , which implies that the criterion of the legal classification of the acts is relevant as a prerequisite for the applicability of the ne bis in idem principle which is enshrined in those treaties .", "...", "There is a necessary implication in the ne bis in idem principle , enshrined in that Article , that GPE have mutual trust in their criminal justice systems and that each of them recognises the criminal law in force in the other GPE even when the outcome would be different if its own national law were applied ( [ Case C-CARDINAL/CARDINAL ] GPE and GPE [ [ DATE ] ECR I-CARDINAL ] , paragraph CARDINAL ) .", "It follows that the possibility of divergent legal classifications of the same acts in CARDINAL different Contracting States is no obstacle to the application of LAW ORG .", "For the same reasons , the criterion of the identity of the protected legal interest can not be applicable since that criterion is likely to vary from CARDINAL ORG to another .", "The above findings are further reinforced by the objective of LAW ORG , which is to ensure that no one is prosecuted for the same acts in several ORG on account of his having exercised his right to freedom of movement ( GPE and GPE , paragraph CARDINAL , and Case C-CARDINAL/CARDINAL GPE [ DATE ] ECR I-CARDINAL , paragraph CARDINAL ) .", "As pointed out by ORG in point CARDINAL of his Opinion , that right to freedom of movement is effectively guaranteed only if the perpetrator of an act knows that , once he has been found guilty and served his sentence , or , where applicable , been acquitted by a final judgment in a member ORG , he may travel within the LOC territory without fear of prosecution in another member ORG on the basis that the legal system of that member ORG treats the act concerned as a separate offence .", "Because there is no harmonisation of national criminal laws , a criterion based on the legal classification of the acts or on the protected legal interest might create as many barriers to freedom of movement within the GPE territory as there are penal systems in GPE .", "In those circumstances , the only relevant criterion for the application of LAW of the ORG is identity of the material acts , understood in the sense of the existence of a set of concrete circumstances which are inextricably linked together .", "...", "... the definitive assessment in that regard belongs ... to the competent national courts which are charged with the task of determining whether the material acts at issue constitute a set of facts which are inextricably linked together in time , in space and by their subject matter . ”", "The ORG confirmed and developed this approach in the most recent case concerning the application of the non bis in idem principle ( PERSON , Case C-CARDINAL/CARDINAL , DATE ) :", "“ CARDINAL . ... it should be noted that the ORG has already held that the only relevant criterion for the application of LAW ORG is identity of the material acts , understood as the existence of a set of concrete circumstances which are inextricably linked together ( see PERSON , paragraph CARDINAL ; Case C-CARDINAL/CARDINAL ORG and Others [ DATE ] ECR I-CARDINAL , paragraph CARDINAL ; and Case C-CARDINAL/CARDINAL PERSON [ DATE ] ECR I-CARDINAL , paragraph CARDINAL ) .", "In order to assess whether such a set of concrete circumstances exists , the competent national courts must determine whether the material acts in the CARDINAL proceedings constitute a set of facts which are inextricably linked together in time , in space and by their subject matter ( see , to that effect , PERSON , paragraph CARDINAL ; ORG and Others , paragraph CARDINAL ; and PERSON , paragraph CARDINAL ) .", "It follows that the starting - point for assessing the notion of ‘ same acts’ within the meaning of LAW ORG is to consider the specific unlawful conduct which gave rise to the criminal proceedings before the courts of GPE as a whole . Thus , LAW ORG can become applicable only where the court dealing with the second criminal prosecution finds that the material acts , by being linked in time , in space and by their subject matter , make up an inseparable whole .", "On the other hand , if the material acts do not make up such an inseparable whole , the mere fact that the court before which the second prosecution is brought finds that the alleged perpetrator of those acts acted with the same criminal intention does not suffice to indicate that there is a set of concrete circumstances which are inextricably linked together covered by the notion of ‘ same acts’ within the meaning of LAW ORG .", "As ORG in particular pointed out , a subjective link between acts which gave rise to criminal proceedings in CARDINAL different ORG does not necessarily mean that there is an objective link between the material acts in question which , consequently , could be distinguished in time and space and by their nature .", "...", "... it is for the competent national courts to assess whether the degree of identity and connection between all the factual circumstances that gave rise to those criminal proceedings against the same person in GPE is such that it is possible to find that they are ‘ the same acts’ within the meaning of LAW ORG .", "...", "In the light of the foregoing , the answer to the first question must therefore be that LAW ORG is to be interpreted as meaning that :", "– the relevant criterion for the purposes of the application of that Article is identity of the material acts , understood as the existence of a set of facts which are inextricably linked together , irrespective of the legal classification given to them or the legal interest protected ;", "– different acts consisting , in particular , first , in holding in CARDINAL ORG the proceeds of drug trafficking and , second , in the exchanging at exchange bureaux in another Contracting State of sums of money also originating from such trafficking should not be regarded as ‘ the same acts’ within the meaning of LAW ORG merely because the competent national court finds that those acts are linked together by the same criminal intention ;", "– it is for that national court to assess whether the degree of identity and connection between all the facts to be compared is such that it is possible , in the light of the said relevant criterion , to find that they are ‘ the same acts’ within the meaning of LAW of the ORG . ”", "Article CARDINAL § CARDINAL of LAW reads as follows :", "“ An accused person acquitted by a non - appealable judgment shall not be subjected to a new trial for the same cause . ”", "ORG gave the following interpretation of that provision ( PERSON v. GPE , DATE , Series C No . CARDINAL , § CARDINAL ) :", "“ This principle is intended to protect the rights of individuals who have been tried for specific facts from being subjected to a new trial for the same cause . Unlike the formula used by other international human rights protection instruments ( for example , ORG , LAW ) , which refers to the same ‘ crime’ ) , LAW uses the expression ‘ the same cause’ , which is a much broader term in the victim ’s favour . ”", "In GPE the double - jeopardy rule arises out of LAW to the LAW , the relevant clause of which reads :", "“ ... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ... ”", "In the case of ORG , CARDINAL U.S. CARDINAL ( DATE ) , in which the defendant had sold drugs not in the original package and without a written order of the purchaser , and where the sale had been characterised as CARDINAL statutory offences , ORG adopted the following interpretation :", "“ Section CARDINAL of LAW creates the offense of selling any of the forbidden drugs except in or from the original stamped package ; and LAW creates the offense of selling any of such drugs not in pursuance of a written order of the person to whom the drug is sold . Thus , upon the face of the statute , CARDINAL distinct offenses are created . Here there was but CARDINAL sale , and the question is whether , both sections being violated by the same act , the accused committed CARDINAL offenses or CARDINAL .", "...", "Each of the offenses created requires proof of a different element . The applicable rule is that , where the same act or transaction constitutes a violation of CARDINAL distinct statutory provisions , the test to be applied to determine whether there are CARDINAL offenses or CARDINAL is whether each provision requires proof of an additional fact which the other does not ... [ T]his court quoted from and adopted the language of ORG in GPE , CARDINAL ORG CARDINAL : ‘ A single act may be an offense against CARDINAL statutes ; and if each statute requires proof of an additional fact which the other does not , an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the CARDINAL . ”", "In the case of PERSON v. PERSON , CARDINAL GPE CARDINAL ( DATE ) , which concerned “ vehicular homicide ” by the defendant Mr PERSON , ORG developed a different approach :", "“ ... [ A ] technical comparison of the elements of the CARDINAL offenses as required by Blockburger does not protect defendants sufficiently from the burdens of multiple trials . This case similarly demonstrates the limitations of the Blockburger analysis . If PERSON constituted the entire double - jeopardy inquiry in the context of successive prosecutions , the ORG could try PERSON in CARDINAL consecutive trials : for failure to keep right of the median , for driving while intoxicated , for assault , and for homicide . The ORG could improve its presentation of proof with each trial , assessing which witnesses gave the most persuasive testimony , which documents had the greatest impact , which opening and closing arguments most persuaded the jurors . PERSON would be forced either to contest each of these trials or to plead guilty to avoid the harassment and expense .", "Thus , a subsequent prosecution must do more than merely survive the PERSON test . As we suggested in PERSON , the double - jeopardy clause bars any subsequent prosecution in which the government , to establish an essential element of an offense charged in that prosecution , will prove conduct that constitutes an offense for which the defendant has already been prosecuted . ... The critical inquiry is what conduct the ORG will prove , not the evidence the ORG will use to prove that conduct ... [ A ] ORG can not avoid the dictates of the double - jeopardy clause merely by altering in successive prosecutions the evidence offered to prove the same conduct ... ”", "Nevertheless , in the case of GPE v. PERSON , CARDINAL GPE CARDINAL ( DATE ) , ORG returned to the PERSON test :", "“ The double - jeopardy clause ’s protection attaches in non - summary criminal contempt prosecutions just as it does in other criminal prosecutions . In the contexts of both multiple punishments and successive prosecution , the double - jeopardy bar applies if the CARDINAL offenses for which the defendant is punished or tried can not survive the ‘ same elements’ or ‘ Blockburger’ test . ... That test inquires whether each offense contains an element not contained in the other ; if not , they are the ‘ same offense’ within the clause ’s meaning , and double jeopardy bars subsequent punishment or prosecution . ...", "Although prosecution [ in the present case ] would undoubtedly be barred by the PERSON ‘ same - conduct’ test , PERSON must be overruled because it contradicted an unbroken line of decisions ... and has produced confusion . ... Moreover , the PERSON rule has already proved unstable in application , see GPE v. PERSON , CARDINAL GPE ... Although the ORG does not lightly reconsider precedent , it has never felt constrained to follow prior decisions that are unworkable or badly reasoned . ”" ]

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[ "The first applicant , Mr GPE , was born in DATE and lives in ORG in GPE . He is the President of ORG .", "The second applicant , Mr PERSON , was born in DATE and lives in GPE . He is a co - founder and member of the third applicant , ORG , a religious group without legal - entity status .", "In DATE the first centre for the study of ORG ( the creed of ORG ) opened in ORG and obtained ORG registration as a social non - governmental organisation under the name of “ ORG ” .", "NORP In DATE a new NORP law on non - governmental associations was enacted . It required all non - governmental associations established before its entry into force to be re - registered before DATE . The ORG applied for re - registration ; however , its application was refused on DATE on the ground that the aims of the organisation were religious in nature . On DATE ORG of GPE ( “ GPE Justice Department ” ) sought a court decision terminating the ORG ’s existence .", "The ORG applied for registration as a non - commercial partnership regulated by LAW of GPE . On DATE the deputy mayor of ORG rejected the application , referring to the religious purposes of the Centre .", "On DATE the first applicant , in community with his fellow believers , resolved to found ORG ” and to hold regular services on DATE . At a subsequent meeting on DATE , the first applicant and other believers passed a resolution to establish a local religious organisation , ORG ( “ the ORG ” ) .", "On DATE the CARDINAL founding members , including the first applicant , applied to ORG for registration as a local religious organisation having the status of a legal entity .", "On DATE the Khanty - Mansi ORG refused registration in the following terms :", "“ You have failed to produce a document issued by a local authority certifying that the religious group has existed in the given territory for DATE , or a document issued by the managing body of a centralised religious organisation certifying that the religious group is a branch of such an organisation , and this does not comply with the requirements of section CARDINAL(CARDINAL ) of the Federal Law on freedom of conscience and religious associations .", "The refusal of registration does not prohibit a subsequent new application for registration provided that the grounds for the refusal have been removed . ”", "On DATE the first applicant appealed against that decision to the Khanty - Mansi Town Court . He alleged that his constitutional right to freedom of conscience had been violated and that his religious group had been discriminated against . Lacking the status of a legal entity , his religious group could not print , export or import religious books or articles of worship , own property , carry out charitable activities or found organisations for religious purposes .", "On DATE the NORP - Mansi Town Court dismissed the complaint . It held that GPE had correctly refused registration because ORG had failed to provide a document confirming it had been in existence in the region for DATE . As to the first applicant ’s reliance on the LAW , it held : “ this reference ... is far - fetched and can not be taken into consideration . ” No further justification was provided .", "On DATE the Khanty - Mansi Regional Court upheld the judgment of DATE . The court repeated that the applicant ’s references to the decisions of ORG and LAW were “ groundless ” .", "Following a request by the first applicant , on DATE the Presidium of the Khanty - Mansi Regional Court instituted supervisory - review proceedings , quashed the contested judgments and remitted the matter to ORG for a fresh examination . It noted that ORG should have “ left the application unexamined ” until all the documents required by law had been produced .", "On DATE the Khanty - ORG commissioned an expert study of the religious teachings of ORG and stayed the proceedings in the case . On DATE the NORP - Mansi Regional Court upheld that decision on appeal .", "On DATE the Khanty - Mansi Town Court resumed the proceedings and delivered a new judgment on DATE . It held that the refusal to register ORG had been unlawful because in the absence of a certificate showing its DATE presence in the region , ORG should have left the application for registration “ unexamined ” . It ordered ORG to register ORG .", "On DATE the NORP - Mansi Regional Court quashed the judgment in so far as it concerned the order to register ORG , on the ground that the first applicant had not produced all the documents required by PERSON no . CARDINAL of DATE ( “ the Religions Act ” ) , a circumstance which ORG considered to be an impediment to the registration of ORG as a legal entity .", "On DATE the second applicant and fellow believers resolved to found ORG as a local religious group .", "On DATE the applicant church applied to ORG of GPE ( “ the Registration Chamber ” ) for registration as a local religious organisation .", "In a letter of DATE , ORG informed the second applicant that the term for registration had been extended for DATE from DATE in order to allow the ORG authorities to carry out a religious expert examination .", "NORP In a letter of DATE , a deputy chairperson of ORG informed the president of the applicant church that the application for registration had been rejected as “ there [ had ] so far been no conclusions from the religious expert examination to which the applicant church ’s documents [ had ] been subjected ” .", "The second applicant appealed to a court against the refusal of registration .", "On DATE ORG dismissed the second applicant ’s claim , arguing that there was no actual dispute as the authorities had yet to carry out the religious expert examination and the application for registration had yet to be examined on the merits .", "On DATE ORG ( “ the ORG ” ) quashed the judgment of DATE and remitted the claim to ORG for a fresh examination .", "On DATE ORG again dismissed the second applicant ’s claim . It found that the refusal had been justified because internal Order no . CARDINAL issued by ORG of GPE on DATE prohibited the use of NORP methods in health services .", "On DATE ORG quashed the judgment of DATE and remitted the matter to ORG . It found that the absence of a religious expert examination was not a valid ground for the refusal of registration and that an internal order issued by a ministry was hierarchically subordinate to NORP laws and could not have been relied upon to restrict ORG rights .", "On DATE ORG granted the second applicant ’s claim and found that the refusal to register the applicant church had been unlawful . It noted that the application for registration had been made in DATE , but that “ the religious organisation [ had ] still not been registered owing to contrived reasons , although the federal law contain[ed ] an exhaustive list of grounds on which registration [ could ] be refused ” . It also held that there was no doubt as to “ the religious nature of the organisation being registered ” , that a religious expert examination was not mandatory and that the absence of such an examination could not be cited as a ground for refusing registration as this would encroach on ORG rights . On DATE ORG upheld the judgment .", "In the meantime , on DATE the power to approve the registration of religious organisations was transferred from ORG to ORG of ORG GPE ( “ the NORP Justice Department ” ) . Accordingly , on DATE the application for registration of the applicant church and related documents were also transferred to ORG .", "On DATE ORG forwarded a copy of its judgment of CARDINAL DATE to ORG for execution . However , ORG refused to proceed with the registration on the ground that it was not the legal successor to ORG .", "The second applicant asked ORG to clarify the judgment of CARDINAL DATE specifically as to which authority was to execute the judgment in view of the fact that the power of ORG to register religious organisations had been transferred to ORG with effect from DATE further to a change in the law .", "On DATE the applicant church again requested ORG to grant it legal - entity status , pursuant to the judgment of CARDINAL DATE .", "On DATE ORG held that no clarification of the judgment was required as “ no ambiguity could be found in the judgment ” . It also noted that , in the event of improper execution of a court judgment or a violation of the second applicant ’s rights by other ORG officials , he could lodge a complaint with a court on “ general grounds ” .", "The second applicant appealed against the decision of DATE to ORG . However , it appears that the appeal was never examined as by that time the case file had been forwarded to the President of ORG in connection with the application for supervisory review lodged by ORG ( see paragraphs CARDINAL - CARDINAL below ) .", "On DATE the second applicant sued ORG for its failure to comply with the final judgment of CARDINAL DATE and to register the applicant church . It appears that this action was subsequently stayed in connection with the supervisory - review proceedings described below .", "On DATE the head of ORG wrote to a vice - president of ORG , requesting him to exercise his supervisory - review powers in respect of the judgment of CARDINAL DATE with a view to quashing it .", "On DATE the President of ORG lodged an application for supervisory review with the ORG of the court . On DATE the ORG granted the application , quashed the judgments of CARDINAL May and DATE and referred the matter back for a fresh examination . It found that a religious expert examination was a mandatory precondition for State registration of a little - known religious organisation such as the applicant church .", "On DATE ORG , a body attached to ORG , submitted its opinion concerning the applicant church further to a request by ORG . It concluded that ORG was a religion . However , it did not recommend registration of the applicant church because it had only recently been established in GPE .", "On DATE ORG ruled that the application for registration should be left “ unexamined ” in the absence of a document confirming the applicant church ’s presence in GPE for DATE .", "On DATE ORG carried out a fresh determination of the second applicant ’s claim . It found as follows :", "“ [ The second applicant ] considers that the refusal of registration was unlawful and that it violated his right to freedom of conscience and religion . The court can not agree ... Neither [ the second applicant ] nor anyone else is prohibited or prevented from professing NORP individually or in community with others . The refusal to grant legal - entity status to an organisation may only violate a citizen ’s right to freedom of association ...", "The court has established that persons professing PERSON appeared in the town of LOC in DATE . In DATE the group comprising [ the second applicant ] decided to establish the religious organisation ORG and register it as a legal entity ... ORG refused registration by reference to the absence of an opinion resulting from a religious expert examination . [ The second applicant ] complained to a court ... While the case was being examined , the power to approve registration of the religious organisation was transferred to the [ NORP ] ORG , which ... left the application for registration unexamined , referring to the fact that the religious group had existed in the town of GPE for DATE ...", "The ground preventing registration is the fact that the religious group has existed for DATE . Admittedly , pursuant to LAW , this ground can be invoked to leave the application unexamined rather than to refuse registration ; however , in either case registration of the organisation is not possible . Hence , given that the outcome of the decision by ORG is correct ( the organisation may not be registered ) , the court can not use a formal pretext to require the [ NORP ] ORG to breach LAW and register the organisation , especially taking into account that [ ORG ] has already corrected ORG mistake and issued a decision in conformity with LAW . ”", "On DATE ORG upheld that judgment .", "On DATE ORG dismissed the second applicant ’s action against ORG for its failure to execute the judgment of CARDINAL DATE ( see above ) . The court found that the judgment in the second applicant ’s favour had been quashed by way of supervisory - review proceedings and that ORG final judgment of DATE had removed any basis for requiring ORG to register the applicant church . On DATE ORG upheld on appeal the judgment of CARDINAL DATE .", "In DATE , jurisdiction over the registration of religious organisations was transferred to the newly created ORG . The second applicant sought registration from the local office of this new body . On DATE the Chief Directorate of ORG for PERSON declined to consider the matter , referring the applicant church to ORG earlier refusals to register it on the basis of the “ DATE rule ” .", "The ORG guarantees equality of rights and freedoms of men and citizens regardless of their individual characteristics , including religious beliefs . The LAW prohibits all forms of restrictions on human rights on social , racial , national , linguistic or religious grounds ( Article CARDINAL ) .", "Article CARDINAL guarantees the right to freedom of religion , including the right to profess any religion , either alone or in community with others , or to profess no religion at all , to freely choose , hold and share religious and other beliefs and to manifest them in practice .", "On DATE the Federal Law on freedom of conscience and religious associations ( “ the Religions Act ” ) came into force . It replaced LAW of DATE and ORG Religions Act of DATE .", "In its preamble LAW acknowledges “ the special role of [ ORG ] Orthodoxy in the history of GPE and in the establishment and development of its spiritual and cultural life ” and respects “ NORP , ORG , NORP , ORG and other religions constituting an integral part of the historical heritage of the peoples of GPE ” . Section CARDINAL(CARDINAL ) provides that “ nothing in the laws on freedom of conscience , freedom of religion and religious associations may be interpreted as impairing or infringing the rights of men and citizens to the freedom of conscience and religion guaranteed by LAW or enshrined in the international treaties to which GPE is a party ” .", "At the session of ORG of GPE ( the lower chamber of ORG ) on DATE , PERSON , Chairman of ORG and one of the drafters of the PERSON , stated as follows before the PERSON was put to the vote :", "“ Nevertheless , I will remind you of the essence of this PERSON . It is this : the PERSON will create a barrier on the path to religious expansion in GPE , it will hinder the development of totalitarian sects and restrict the activities of foreign missionaries , while at the same time creating conditions for the activities of our traditional religions and confessions ... We are confident that the application of this PERSON in practice will help to resolve problems being faced now by society , the ORG and the [ NORP ORG ... I would like to refer to the fact that it is noteworthy that all the confessions whose representatives [ objected to certain provisions of the LAW ] have their headquarters overseas . I say that to those who today feel that our PERSON is unfit and are planning to vote against it . And I want to put this question to you : whose side are you on , dear colleagues ? ”", "A “ religious association ” is a generic term for any voluntary association of NORP nationals and other persons permanently and lawfully residing in the territory of GPE , formed for the joint profession and dissemination of their creed , which performs services of worship , religious rites and ceremonies , teaches its religion and guides its followers ( section CARDINAL(CARDINAL ) ) . “ Religious associations ” may take the form of either “ religious groups ” or “ religious organisations ” ( section CARDINAL(CARDINAL ) ) .", "A “ religious group ” is a voluntary association of citizens for the profession and dissemination of faith , which carries out its activities without ORG registration and without obtaining legal personality ( section CARDINAL(CARDINAL ) ) . The formation of a religious group , if its subsequent conversion into a religious organisation is envisaged , must be notified to the municipal authority ( section CARDINAL(CARDINAL ) ) . Religious groups have the right to perform services of worship , religious rites and ceremonies , to teach religion and to guide their followers ( section CARDINAL(CARDINAL ) ) .", "In contrast to a religious group , a “ religious organisation ” is a voluntary association of NORP nationals and permanent residents of GPE , formed for the profession and dissemination of faith and duly registered as a legal entity ( section CARDINAL(CARDINAL ) ) .", "The following rights are conferred solely on religious organisations :", "– the right to obtain tax exemptions and other benefits , and financial and other forms of aid for the restoration , maintenance and protection of historically important buildings and religious items and for teaching in educational institutions ( section CARDINAL(CARDINAL ) ) ;", "– the right to establish educational institutions and , with the consent of the parents and children , to teach religion in extracurricular courses ( section CARDINAL(CARDINAL ) and ( CARDINAL ) ) ;", "– the right to establish and maintain religious buildings and other places for worship or pilgrimage ( section CARDINAL(CARDINAL ) ) ;", "– the right to perform religious rites , on invitation , in health centres , hospitals , children ’s homes , old people ’s homes , facilities for the disabled and prisons ( section CARDINAL(CARDINAL ) ) ;", "– the right to manufacture , acquire , export , import and distribute religious literature , printed , audio and video material and other religious articles ( section CARDINAL(CARDINAL ) ) ;", "– the right to carry out charitable activities on their own or through charitable foundations established by them ( section CARDINAL ) ) ;", "– the right to create cross - cultural organisations , educational institutions and media outlets ( section CARDINAL(CARDINAL ) ) ;", "– the right to establish and maintain international links and contacts for pilgrimages , conferences and so on , including the right to invite foreign nationals to GPE ( section CARDINAL(CARDINAL ) ) ;", "– the right to own buildings , plots of land , other property , financial assets and religious artefacts , including the right to have municipal and ORG property transferred to them free of charge for religious purposes and the immunity of such property from legal charge ( section ORG ) to ( CARDINAL ) ) ;", "– the right to use ORG and other property for religious purposes , such right to be granted free of charge ( section CARDINAL ) ;", "– the right to establish companies and engage in business activities ( section CARDINAL ) ;", "– the right to hire employees ( section DATE ) .", "In addition , the following rights are explicitly reserved to religious organisations , to the exclusion of other non - religious legal entities :", "– the right to found companies publishing religious literature or producing articles for religious services ( section PERSON ) ) ;", "– the right to establish licensed educational institutions for the professional training of clergy and auxiliary religious staff ( section CARDINAL(CARDINAL ) ) ;", "– the right to invite to the NORP Federation foreign nationals planning to engage in professional religious activities , including preaching ( section MONEY ) ) .", "Section CARDINAL(CARDINAL ) provides that a religious organisation may be founded by CARDINAL NORP nationals united in a religious group that has confirmation from the local administrative authority of its existence in the given territory for DATE or confirmation by a centralised religious organisation of the same creed that it forms part of its structure . A religious organisation must seek State registration from the local department of justice ( section CARDINAL(CARDINAL ) ) .", "If the founders of a religious organisation fail to produce any of the documents required by law , including the confirmation referred to in section CARDINAL ) , the registration authority may leave their application for registration unexamined and notify them of this ( section PERSON ) ) .", "State registration of a religious organisation may be refused , in particular , if its purposes or activities contradict LAW or laws , or if the organisation ’s charter or other founding documents do not comply with the requirements of NORP laws . The refusal may be appealed against to a court ( section CARDINAL ) .", "Examining the compatibility with LAW of the requirement of LAW that all religious organisations established before its entry into force should confirm that they have existed for DATE , ORG found as follows ( decision no . TIME of DATE in the case of ORG of Jehovah ’s Witnesses in GPE and ORG ) :", "“ CARDINAL . ... Article CARDINAL of LAW , read in conjunction with LAW , LAW , LAW and CARDINAL and LAW , shows that freedom of religion includes the freedom to form religious associations and to carry out their activities on the basis of the principle of equality before the law . By virtue of these provisions the federal legislature ... may regulate the legal status of religious associations , including the conditions for granting the status of a legal entity , and the procedure for their founding , establishment and ORG registration , and determine the scope of the rights of religious associations .", "Having regard to GPE ’s history of pluriconfessionalism , legislators must respect the provisions of LAW of LAW , which guarantees the rights and freedoms of men and citizens in accordance with generally accepted principles and norms of international law and LAW . Measures decreed by legislators relating to the founding , establishment and registration of religious organisations must not interfere with the essence of the freedom of religion , the right to freedom of association and the freedom of activity of public associations , and any potential restrictions on those and other constitutional rights must be justified and proportionate to aims considered important by LAW .", "In a NORP society with its characteristic pluralism , as follows from ... Article CARDINAL § CARDINAL of the Convention ... restrictions may be prescribed by law if this is necessary in the interests of public peace and the protection of public order , health and morals or for the protection of the rights and freedoms of others . The ORG has the right to lay down certain barriers in order not to automatically provide legal status [ to religious associations ] , not to allow the legalisation of associations of citizens that violate human rights and commit illegal and criminal acts , and in order to obstruct missionary activity ( including the problem of proselytism ) if it is not compatible with respect for the freedom of thought , conscience and religion of others and other constitutional rights and freedoms , as in the case of the recruitment of other members into the church , or unlawful influence on people in need or poverty , through psychological pressure or the threat of violence . In particular , this is emphasised in the Resolution of ORG of DATE on sects in LOC and Recommendation CARDINAL ( DATE ) [ of ORG ] of ORG on sects and new religious movements , as well as in the judgments of ORG of DATE ( [ ORG v. GPE ] , Series A no . CARDINAL ) and of DATE ( [ Manoussakis and Others v. GPE ] , Reports of Judgments and Decisions PERSON ) , which clarify the nature and scope of the ORG ’s obligations flowing from LAW ...", "...", "... Pursuant to ... LAW ( as amended on DATE ) , all religious associations – both regional and centralised – had , on an equal basis , as legal entities , the rights that were subsequently incorporated in the [ DATE LAW ] ...", "Under such circumstances legislators could not deprive a certain segment of religious organisations that had been formed and maintained full legal capacity of the rights belonging to them , solely on the basis that they did not have confirmation that they had existed for DATE . In relation to religious organisations created earlier , that would be incompatible with the principle of equality enshrined in LAW , LAW and LAW and QUANTITY of the LAW of GPE , and would be an impermissible restriction on freedom of religion ( LAW ) and the freedom of [ voluntary ] associations to form and to carry out their activities ( LAW ) ... ”", "ORG subsequently confirmed this position in its decision no . CARDINAL of DATE in the case of GPE of the Society of PERSON , and decision no . CARDINAL of DATE in the case of GPE Branch of ORG .", "On DATE the ORG delivered decision no . CARDINAL in the case of GPE and Others . The applicants in that case belonged to the religious group “ ORG GPE ” , whose application for legal - entity status was refused in the absence of a document confirming its presence in GPE for DATE . ORG noted that a religious association was not prevented from being formed and operating without ORG registration , but in such cases it could not enjoy the rights and privileges secured only to religious organisations in section CARDINAL(CARDINAL ) and ( CARDINAL ) , section CARDINAL(CARDINAL ) and sections CARDINAL to CARDINAL ( paragraph CARDINAL of the decision ) . It declined , however , to consider the constitutional issue because the applicants had not challenged the refusal in a court of general jurisdiction .", "Deciding on appeal on a complaint by a PERSON against the regional justice department ’s refusal to register the local organisation of GPE ’s Witnesses as a legal entity ( civil case no . CARDINAL ) , ORG held as follows :", "“ LAW , read in conjunction with LAW , LAW , LAW § § CARDINAL and CARDINAL and LAW , shows that freedom of religion includes the freedom to form religious associations and to carry out their activities on the basis of the principle of equality before the law ...", "Religious groups may carry out their activities without ORG registration or the legal status of a legal entity . However , if citizens form a religious group for the purpose of making it into a religious organisation later on , then they must notify the local self - government body of its formation and the commencement of its activities ...", "The above - mentioned provisions show that nothing legally hinders a religious association from being formed and operating without ORG registration for the purpose of joint profession and dissemination of faith . However , in such circumstances a religious association will not have the status of a legal entity and can not therefore enjoy the rights and privileges secured to religious organisations in the [ Religions Act ] ( section CARDINAL(CARDINAL ) and ( CARDINAL ) , section CARDINAL(CARDINAL ) , sections DATE ) , that is , those collective rights that citizens exercise in community with others , namely within a religious organisation that has legal - entity status , but not on an individual basis or through a religious group .", "Therefore , the very fact that the local religious organisation was unlawfully refused registration hinders PERSON and his fellow believers from exercising their constitutional rights ... ”", "On DATE the Ombudsman of ORG published his opinion of DATE on the compatibility of LAW with the international legal obligations of GPE . The opinion stated , inter alia :", "“ A number of provisions of the LAW are inconsistent with principles set forth in international legal instruments , and , accordingly , can be contested by citizens when lodging complaints with ORG . In essence , these provisions can not operate in the territory of GPE , since the rules established by international treaties [ must ] prevail over domestic legislation , as is envisaged by LAW ( LAW ) ...", "The distinction between religious organisations and religious groups provided for in the LAW is contrary to both LAW and the case - law of the LAW bodies , which are an important source of NORP law . In accordance with section CARDINAL(CARDINAL ) of the LAW , religious groups , in contrast to religious [ organisations ] , are not subject to ORG registration and do not enjoy the rights of a legal entity .", "Furthermore , the LAW discriminates between ‘ traditional’ religious organisations and religious organisations that do not possess a document proving their existence in a given territory for DATE ( section CARDINAL(CARDINAL ) of the Act ) . ‘ Non - traditional’ religions are deprived of many rights ... ”", "On DATE the ORG issued a special report on GPE ’s observance of its commitments entered into upon accession to ORG . The report states , inter alia :", "“ Among the commitments undertaken by GPE upon entry into ORG was to bring its legislation on freedom of conscience and religion into line with NORP norms . The [ Religions Act ] , enacted on DATE after ORG had joined ORG , did not take into consideration the existing rules or universally recognised principles of international law .", "As a ORG to ORG , GPE assumed express obligations in the sphere of freedom of conscience and religion . A number of provisions of LAW ] are contrary to principles established in LAW and , accordingly , may be challenged by citizens when lodging applications with ORG ...", "A number of provisions of the LAW establish rules that in essence discriminate against certain religions in practice . The distinction between religious organisations and religious groups provided for in the LAW is contrary to both LAW and the case - law of the LAW bodies , which are an important source of NORP law . Furthermore , the LAW discriminates between ‘ traditional’ religious organisations and religious organisations that do not possess a document proving their existence in a given territory for DATE ( section CARDINAL(CARDINAL ) ) . ‘ Non - traditional’ religions are deprived of many rights ...", "In the current situation one can not exclude [ the possibility ] of decisions of ORG GPE in cases connected with freedom of religion and religious beliefs . ”", "ORG of DATE by ORG on the Honouring of Obligations and Commitments by member ORG ( “ the ORG DATE . DATE ) on the honouring of obligations and commitments by GPE states in its relevant parts as follows :", "“ CARDINAL . Another of the commitments GPE entered into was to adopt a new PERSON on the freedom of religion . Such a new PERSON has indeed been adopted , but unfortunately , it seems to fall rather short of ORG standards on the matter . ...", "The new PERSON on freedom of conscience and on religious associations entered into force on DATE , after having been revised following a presidential veto of the first version . While the PERSON does provide adequate protection for an individual ’s right to profess or not to profess the religion of his choice , it contains some other provisions which seem to be inconsistent with international standards and with GPE ’s international treaty obligations . In particular , the PERSON establishes CARDINAL categories of religious associations : the more privileged ‘ religious ORG and the less privileged ‘ religious PERSON . Religious groups , unlike religious organisations , do not have the status of a legal person , and do not enjoy the rights associated with this status , such as owning property , concluding contracts , and hiring employees . In addition , they are explicitly barred from operating schools or inviting foreign guests to GPE . Religious organisations have these rights , but to be recognised as such must be either classified as a ‘ traditional’ religion or must have existed as a registered religious group on NORP territory for DATE , the latter to be certified by the local authorities . In fact , with the entry into force of this PERSON , a third category of religious associations was created : religious groups registered with the authorities on DATE ( for DATE ) who already enjoy the status of a legal person may keep this status and the associated rights , provided they re - register DATE with the authorities . These provisions may lead to discriminatory treatment especially of non - traditional religions , thus undermining the principle of religious equality before the law . A revision of some of these provisions may be called for to ensure compliance with ORG . ... ”", "The ORG by ORG of DATE ( doc . CARDINAL ) on the honouring of obligations and commitments by GPE states in its relevant parts as follows .", "“ CARDINAL . The LAW safeguards freedom of conscience and of religion ( LAW ) ; the equality of religious associations before the law and the separation of ORG ( Article CARDINAL ) , and offers protection against discrimination based on religion ( Article CARDINAL ) . The PERSON on freedom of religion of DATE has led to a considerable renewal of religious activities in GPE . According to religious organisations met in GPE , this PERSON has opened a new era , and led to a revitalisation of churches . It was replaced on DATE by a new ORG on freedom of conscience and religious associations . This legislation has been criticised both at home and abroad on the grounds that it disregards the principle of equality of religions .", "On DATE , Mr Atkinson and others presented a motion for a recommendation ( doc . DATE , which was referred to ORG by reference PERSON ) in which they argued that this new legislation on freedom of conscience and religious associations contravened ORG , LAW as well as the commitments entered into by GPE on accession . In DATE , ORG , PERSON , also acknowledged that many Articles of the DATE Law on freedom of conscience and religious associations do not meet GPE ’s international obligations on human rights . According to him , some of its clauses have led to discrimination against different religious faiths and should therefore be amended .", "In its preamble the PERSON recognises ‘ the special role of Orthodoxy in the history of GPE and in the establishment and development of its spiritual and cultural life’ and respects ‘ NORP , ORG , NORP , ORG and other religions constituting an integral part of the historical heritage of the peoples of Russia’ . The PERSON then goes on to draw a distinction between ‘ religious ORG , according to whether or not they existed before DATE , and a third category , called ‘ religious PERSON . Religious organisations that had existed for DATE , and religious groups have been subject to legal and tax disadvantages and their activities have been restricted . ”", "Resolution DATE ) on GPE ’s PERSON on religion , adopted by ORG of ORG on DATE , noted , inter alia , the following :", "“ CARDINAL . The new NORP Law on religion entered into force on DATE , abrogating and replacing a DATE LAW generally considered very liberal DATE on the same subject . The new PERSON caused some concern , both as regards its content and its implementation . Some of these concerns have been addressed , notably through the judgments of ORG of GPE of DATE , DATE and DATE , and the religious communities’ re - registration exercise at federal level successfully completed by ORG on DATE . However , other concerns remain .", "The PERSON itself , while posing an acceptable basis of operation for most religious communities , could still be ameliorated . Although ORG has already restricted the application of the so - called ‘ DATE rule’ , which initially severely limited the rights of religious groups that could not prove their existence on NORP territory for DATE before the new PERSON entered into force , the total abolition of this rule would be considered as an important improvement of the legislative basis by several of these groups . ... ”", "DATE . The report “ Freedom of Religion or Belief : Laws Affecting the Structuring of Religious Communities ” , prepared under the auspices of ORG in LOC ( ORG ) for the benefit of participants in the DATE OSCE Review Conference , states , inter alia :", "“ The most controversial duration requirement in DATE is that adopted in the CARDINAL Russian Law on Freedom of Conscience and on ORG . Unless affiliated with a centralised religious organisation , a religious group under this PERSON can not acquire full religious entity status unless it has been in the country for DATE . What is strikingly unusual about this requirement is that to the best of our knowledge , at the time of its adoption , there were no other LOC participating GPE that imposed a waiting requirement ( other than document processing periods ) with respect to base - level entities ... GPE has taken some steps to mitigate the discriminatory impact on smaller groups by minimising the evidentiary burden required to demonstrate presence in the country for the required period , and by creating a limited entity status for religious groups waiting out their DATE period . But problems remain for smaller groups or for congregations that have split off from FAC , and while limited entity status is better than nothing , it imposes significant constraints on a religious group ’s ability to expand .", "Duration requirements of this type are clearly inconsistent with the ORG commitment to grant religious groups at least base - level entity status . The wording of this commitment in LAW of ORG recognises that the precise form of legal personality varies from legal system to legal system , but access to some form of legal entity is vital to LOC compliance . This is clearly violated by the refusal to register religious groups that do not satisfy the DATE rule . The drafters of the NORP legislation apparently attempted to remedy this defect by creating limited entity status , but this also fails to satisfy the ORG commitment , because the limited status does not confer rights to carry out important religious functions . Failure to grant such status constitutes a limitation on manifestation of religion that violates LAW ] . It can hardly be said that denial of entity status , simply due to an organisation ’s failure to ‘ exist’ under a preceding , anti - religious , communist government , ‘ is necessary in a democratic society’ or a proportionate response to a legitimate ORG interest ... ”", "The Guidelines for Review of Legislation Pertaining to Religion or Belief , prepared by ORG in consultation with ORG ) and adopted by ORG at its CARDINALth Plenary Session ( DATE ) and welcomed by ORG at its Annual Session ( DATE ) , contain , inter alia , the following recommendations :", "“ Religious association laws that govern acquisition of legal personality through registration , incorporation , and the like are particularly significant for religious organisations . The following are some of the major problem areas that should be addressed :", "...", "– It is not appropriate to require lengthy existence in the ORG before registration is permitted ;", "– Other excessively burdensome constraints or time delays prior to obtaining legal personality should be questioned ;", "... ”", "The relevant provisions of LAW on LAW or Belief , proclaimed by ORG CARDINAL/CARDINAL of DATE , read as follows :", "“ In accordance with LAW , and subject to the provisions of LAW , paragraph CARDINAL , the right to freedom of thought , conscience , religion or belief shall include , inter alia , the following freedoms :", "( a ) To worship or assemble in connection with a religion or belief , and to establish and maintain places for these purposes ;", "( b ) To establish and maintain appropriate charitable or humanitarian institutions ;", "( c ) To make , acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief ;", "( d ) To write , issue and disseminate relevant publications in these areas ;", "( e ) To teach a religion or belief in places suitable for these purposes ;", "( f ) To solicit and receive voluntary financial and other contributions from individuals and institutions ;", "( g ) To train , appoint , elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief ;", "( h ) To observe DATE of rest and to celebrate holidays and ceremonies in accordance with the precepts of one ’s religion or belief ;", "( i ) To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels . ”", "“ The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice . ”", "The relevant part of General Comment No . CARDINAL : The right to freedom of thought , conscience and religion ( DATE ) , prepared by ORG DATE , CCPR / C/CARDINAL/Rev.CARDINAL/Add.CARDINAL ) , reads as follows :", "“ CARDINAL . NORP The freedom to manifest religion or belief ... in worship , observance , practice and teaching encompasses a broad range of acts . The concept of worship extends to ritual and ceremonial acts giving direct expression to belief , as well as various practices integral to such acts , including the building of places of worship , the use of ritual formulae and objects , the display of symbols , and the observance of holidays and days of rest . ... [ T]he practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs , such as the freedom to choose their religious leaders , priests and teachers , the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications . ”" ]

[ "11", "9" ]

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[ "The applicants , Mr PERSON and PERSON PERSON , are a married couple . They are NORP nationals , who were born in DATE and DATE , respectively . They live in ORG Pomorskie , GPE .", "The proceedings summarised below have already been examined by ORG under LAW from the angle of the “ reasonable time ” requirement . In its judgment of DATE ( PERSON v. GPE appl . no . ORG ) the ORG ( former Fourth Section ) unanimously held that there had been a violation of LAW .", "On DATE ORG ( ORG PERSON ) , submitting a bill of exchange payable to bearer which required the first applicant to pay on demand CARDINAL,CARDINAL,CARDINAL,CARDINAL old LANGUAGE zlotys ( PLZ ) , asked ORG ( Sąd Rejonowy ) to issue an order for payment against him .", "On DATE the court granted the plaintiff ’s claim and ruled that the first applicant was to pay the sum in question within DATE from the date of service of the order or , alternatively , within the same time - limit , to lodge an appeal against the said order . The first applicant appealed .", "On DATE , acting under a provisional writ of execution of DATE and on a request by the creditor , i.e. ORG , ORG ( PERSON ) made an order attaching the ORG shares in ORG ( ORG ) and an unknown sum of cash deposited in ORG of ORG ( ORG Banku ORG ) , by way of security for the creditor ’s claim for payment of PLZ CARDINAL pending in ORG .", "On DATE the first applicant lodged an unsuccessful complaint against the actions taken by the bailiff ( skarga na czynności komornika ) , relying on Article CARDINAL of the Code of Civil Procedure and arguing that the attached shares constituted the matrimonial property of the applicants , whereas the execution was against the applicant alone .", "On DATE ORG was taken over by ORG ) . ORG replaced the former bank as a plaintiff in the civil proceedings and as a creditor in the enforcement proceedings .", "On DATE the ORG quashed the order for payment and awarded the plaintiff bank CARDINAL new NORP zlotys ( ORG ) [ approx . ORG CARDINAL,CARDINAL ] together with interests and costs of the proceedings . The plaintiff bank and the first applicant appealed against that judgment .", "On DATE the ORG secured the plaintiff ’s already - awarded claim by attaching the ORG shares in ORG ( ORG ) , an amount of ORG CARDINAL,CARDINAL.CARDINAL in cash deposited in ORG of ORG ( ORG Banku ORG ) and shares in the former ORG ( ORG PERSON ) ( taken over by ORG ) deposited in LOC by ORG ( PERSON ) .", "On DATE the ORG ( Sąd Apelacyjny ) dismissed the appeal lodged by the first applicant against the decision of CARDINAL DATE .", "On DATE the ORG upheld the decision of DATE .", "On DATE the Bailiff of ORG discontinued the enforcement proceedings instituted under the writ of execution of DATE . Nevertheless , the attachment of the applicants’ property made on CARDINAL DATE remained in force .", "On DATE ORG dismissed the cassation appeal lodged by the first applicant .", "On DATE ORG rejected the first applicant ’s request to reopen the proceedings .", "On DATE the applicants sued ORG in ORG ( PERSON ) . They sought damages of LAW claiming that the attachment of their property , in particular the shares , made at ORG request on the basis of the quashed order for payment of DATE , deprived them of any future profit - making trade in shares at ORG .", "On DATE the applicants informed the court that , on DATE , as a result of the ORG merger , ORG ) had been taken over by ORG . From DATE , ORG Bank Gdański SA replaced the former bank as a defendant in the proceedings . On an unknown date the court ordered the applicants to pay a court fee of LAW for lodging the claim .", "On DATE the applicants asked ORG to exempt them from payment of that fee . They also submitted a declaration of means , pursuant to LAW . Their application read , in so far as relevant :", "“ ... The plaintiffs ask for an exemption from the court fee on the ground that they can not pay that sum as it will entail a substantial reduction in their standard of living .", "The GPE matrimonial property was seized by the Bailiff acting upon the decision of ORG of DATE .", "[ in connection with that argument , the applicants produced a copy of that decision ]", "Their income from a farm , which is the second applicant ’s personal property , does not suffice for the payment of ORG CARDINAL,CARDINAL.CARDINAL the plaintiffs owe in tax arrears .", "[ in connection with this argument , the applicants produced a copy of a certificate issued by ORG ( PERSON ) stating the anticipated income and tax arrears ]", "The plaintiffs declare that they are not deriving the anticipated income indicated in the presented certificate due to a shortage of funds for making investment outlays in the production .", "The plaintiffs further state that , given that their other assets were attached , their only present income is that from the farm . In the circumstances , the plaintiffs are unable to pay the court fees .", "Finally , the plaintiffs inform [ the court ] that in other civil proceedings , ORG , in its decision of DATE , exempted the first applicant from paying the full amount of fees .", "[ in connection with that argument , the plaintiffs produced a copy of that decision ] ”", "The declaration of means made by the first applicant read , in so far as relevant :", "“ The plaintiff asks for an exemption from court fees on the ground that he can not pay the fee in question [ as it will ] entail a substantial reduction in his standard of living .", "He has the following items of property :", "CARDINAL ) no personal property ; the average anticipated DATE income from the agricultural farm is estimated at PLN CARDINAL,CARDINAL.CARDINAL ;", "CARDINAL ) CARDINAL shares in ORG , CARDINAL shares in ORG and ORG CARDINAL,CARDINAL.CARDINAL in cash ( matrimonial property attached by the Bailiff ) ;", "CARDINAL ) CARDINAL shares in ORG ;", "CARDINAL ) NORP audio and television equipment ; furniture . ”", "NORP The declaration of means made by the second applicant read , in so far as relevant :", "“ The plaintiff asks for an exemption from court fees on the ground that she can not pay the fee in question [ as it will ] entail a substantial reduction in her standard of living .", "She has the following items of property :", "CARDINAL ) NORP agricultural farm , the average anticipated DATE income from which is estimated at PLN CARDINAL,CARDINAL.CARDINAL ;", "CARDINAL ) NORP car ;", "CARDINAL ) CARDINAL shares in ORG , CARDINAL shares in ORG and ORG CARDINAL,CARDINAL.CARDINAL in cash ( matrimonial property attached by the Bailiff ) ;", "CARDINAL ) CARDINAL shares in ORG ;", "CARDINAL ) NORP audio and television equipment ; furniture . ”", "On DATE the court rejected the applicants’ application . The reasons for that decision read , in so far as relevant :", "“ ... As it emerges from the plaintiffs’ declarations of means , the second applicant is a sole owner of the farm of CARDINAL ha ... The annual anticipated income from the farm amounts to ORG CARDINAL,CARDINAL.CARDINAL and constitutes the only source of the plaintiffs’ income . Moreover , the plaintiffs are the owners of ORG CARDINAL,CARDINAL.CARDINAL in cash , CARDINAL shares in ORG and CARDINAL shares in ORG . It is true that their cash and shares have been attached by the decision of ORG , but the GPE real financial situation does not seem to be as bad as they present it . Taking into consideration their assets and income derived from the farm , the plaintiffs are able to pay the full amount of the court fees without any reduction in their family ’s standard of living . When deciding to bring the present claim , the plaintiffs should have taken into account the fact that it would involve the necessity of paying court fees . They should therefore have secured financial means in anticipation of the litigation ... ”", "On DATE the applicants lodged an interlocutory appeal ( zażalenie ) against that decision . They alleged a breach of Article CARDINAL § CARDINAL of the Code of Civil Procedure and Article CARDINAL § CARDINAL of the Convention . The applicants maintained that it had clearly emerged from the documents produced by them , in particular the ORG decision to secure the plaintiff ’s claim for payment by attaching the ORG shares and the declaration setting out the average anticipated DATE income from the farm , that they were unable to pay the court fee of ORG imposed on them .", "On DATE ORG ( Sąd Apelacyjny ) dismissed the appeal . The relevant part of that decision read :", "“ ... The plaintiffs’ assets are of a considerable value and they several times exceed the average level of means . This conclusion can not be changed by the fact that part of their property is attached in other civil proceedings . The plaintiffs still remain the owners of their property and , consequently , should be able to take necessary measures to gather sufficient means to pay the court fees . The plaintiffs are involved in a number of proceedings concerning pecuniary and non - pecuniary rights to their shares in commercial companies and , in the past , they made a large number of transactions on the stock exchange market . These facts indicate that the plaintiffs ... can not be regarded as indigent and that the court fees for lodging their claim should not be borne by the ORG .", "Their declaration of means is dubious because it is not complete . The plaintiffs did not indicate precisely whether they had title to their apartment . They did not reveal the real income derived from the farm . Nor did they produce any information concerning the type of activities in which they are engaged on their farm . Moreover , [ the first applicant ] failed to indicate his place of employment ; his being his wife ’s dependant seems doubtful .... Lastly , the plaintiffs did not supply any information concerning their house or the farm equipment . That information would have enabled the court to ascertain their real standard of living .", "Assessing all the circumstances , the following conclusion can be drawn : the plaintiffs , who have failed to show their current financial situation and to reveal their income , can not successfully challenge the first - instance decision which rejected their application for an exemption from court fees . They can not therefore complain that they are deprived of access to a court .", "In addition , it should be pointed out that the amount of the court fee is based on the value of the claim in question and that [ that value ] depended on the plaintiffs .... ”", "On DATE ORG ordered the applicants to pay ORG CARDINAL for lodging their claim . The applicants did not pay that sum . As a consequence , on an unknown date , ORG ordered that the applicants’ statement of claim be returned to them ( zarządził zwrot pozwu ) , which meant that their claim was of no legal effect and that the relevant proceedings were , for all legal and practical purposes , regarded as having never been brought before the court .", "NORP Under NORP law every plaintiff is obliged to pay a court fee at the time of lodging a statement of claim with a court . As the case proceeds , either party is obliged to pay further court fees at the time of lodging any appeal or constitutional complaint , unless granted an exemption from such fees .", "Court fees are based on a percentage ( if a fee is due for lodging a claim or an appeal ) or a fraction ( if a fee is due for lodging an interlocutory appeal ) of the value of the claim in question .", "The court fees incurred by either party can , depending on the outcome of the litigation , be finally repaid by the losing party ( who , in principle , is ordered to pay all the costs of litigation in a final judgment ) .", "There are , however , categories of litigants who are exempted from court fees by virtue of statutory provisions . Some of those categories are listed in LAW . That provision , in the version applicable at the relevant time , exempted from court fees a party lodging a paternity action , a party seeking maintenance , a prosecutor , a court - appointed guardian and “ any party exempted from court fees by the competent court ” ( that is to say , a party who had been granted an exemption under LAW , cited below ) .", "The other categories of these exempted litigants are listed in , inter alia , sections CARDINAL and CARDINAL of the Law of DATE on Court Fees in Civil Cases ( PERSON o kosztach sądowych w sprawach cywilnych ) .", "Under section CARDINAL of the PERSON , ORG , municipalities and other public organs or institutions are not obliged to pay court fees , provided that the claim in question does not relate to their business activity . Section CARDINAL authorises the Minister of ORG to exempt non - governmental organisations from court fees .", "In case of a successful outcome of litigation initiated by a person exempted from court fees , the fees which would normally have been collected from that person for lodging and proceeding with his claim are awarded to ORG against his opponent .", "The Law of DATE on Court Fees in Civil Cases ( as amended ) sets out general principles with respect to the collection of fees by courts .", "Section CARDINAL ) of the PERSON , in the version applicable at the material time , stipulated :", "“ Unless otherwise provided by the law , a party who has submitted to a court a pleading which is subject to court fees , shall pay such fees . ”", "The relevant part of section CARDINAL of the PERSON , in the version applicable at the material time , provided as follows :", "“ CARDINAL . The court shall not take any action if the court fee due for lodging a given pleading is not paid . In such a case the president of the court shall order the party concerned to pay the fee due within a period not exceeding seven days , on pain of having the pleading returned . If the party does not comply with the time - limit , the pleading shall be returned to this party .", "...", "Any appeal , cassation appeal , interlocutory appeal or objection to a judgment by default ... shall be rejected if the court fee due is not paid within the [ above ] time - limit . ”", "Section CARDINAL provided :", "“ A pleading which has been returned to a party as a result of the fact that the court fee had not been paid , shall be of no legal effect . ”", "The relevant part of paragraph CARDINAL of the Ordinance of the Minister of Justice of CARDINAL DATE on ORG Fees in Civil Cases ( ORG w sprawie określania wysokości wpisów w sprawach cywilnych ) ( as amended ) , in the version applicable at the material time , stated :", "“ ( CARDINAL ) Where the value of the claim exceeds ORG CARDINAL the court fee shall amount to ORG CARDINAL for the first PLN PERCENT of the remaining value of the claim . In any case the court fee due shall not exceed the sum of ORG CARDINAL . ”", "Exemption from payment of court fees was ( and still is ) a matter for the discretion of the court competent to deal with the case .", "Article CARDINAL § CARDINAL of the Code of Civil Procedure , in the version applicable at the material time , stipulated :", "“ An individual may ask the court competent to deal with the case to grant him an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family ’s standard of living . Such a declaration shall contain details concerning his family , assets and income . It falls within the court ’s discretion to assess whether or not the declaration satisfies the requirements for granting the exemption requested . ”", "The grounds for exempting legal persons , companies and business enterprises from court fees were , however , formulated in a different way from the grounds applying to natural persons . LAW CARDINAL of the Code of Civil Procedure in the version applicable at the relevant time read :", "“ A legal person , or an entity not possessing legal personality , which has demonstrated that it does not have sufficient financial means for court fees , may be granted an exemption from those fees . ”", "Article CARDINAL § CARDINAL of LAW provides :", "“ In case of doubt ... as to the real financial situation of the party requesting exemption from court fees , the court may order a verification of his declaration . ”", "The relevant part of LAW , in the version applicable at the material time , stated :", "“ The court shall revoke an exemption from court fees or legal assistance granted if the basis therefor did not exist or has ceased to exist . In either instance the party concerned shall pay all court and/or legal fees due in his case ... ”", "Fees collected by courts do not constitute , nor are they equivalent to , security for costs . The court fees are transferred by financial departments of the courts to ORG and are deemed to be part of its income .", "On DATE ORG ( PERSON ) gave a decision in which it referred for the first time to the “ right to a court ” guaranteed under LAW in the context of the requirement to pay court fees for lodging a claim or appeal ( decision no . III ORG CARDINAL/CARDINAL , published in ORG . U. DATE , no . CARDINAL ) .", "That ruling concerned an extraordinary appeal lodged by the First President of ORG with ORG . The appeal was directed against a decision of ORG , refusing to exempt a claimant in administrative proceedings from payment of court fees . ORG held as follows :", "“ CARDINAL . From the date on which GPE became a member of ORG , the case - law of ORG in GPE may and should be taken into account in interpreting NORP law .", "NORP If the subject matter of a case is the party ’s application for substantial financial assistance from the public authorities , particular diligence should be displayed in considering [ that party ’s ] parallel application for an exemption from court fees . [ Any decision ] rejecting such an application should give relevant and particularly cogent reasons so as not to amount to an actual denial of the right to a court ( as secured by LAW ) ... ”", "Although the relevant decision related to court fees for lodging an appeal with ORG by a person who had requested financial assistance from the public authorities , it has been applied mutatis mutandis to civil cases ." ]

[ "6" ]

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[ "On DATE ORG found PERSON guilty of violating LAW because the trunks of unlawfully cut down trees were found in his garden . He was sentenced to DATE imprisonment . On DATE the PERSON prosecutor issued a warrant for his arrest . What followed , particularly the events which took place on DATE , is disputed by the parties .", "The facts as presented by the applicants are set out in Section B below ( see paragraph CARDINAL ) . The ORG 's submissions concerning the facts are summarised in Section C below ( paragraphs CARDINAL ) . The documentary evidence submitted by the applicant and the Government is summarised in Section D ( see paragraphs DATE ) .", "Early in the morning of DATE the commander of ORG , first lieutenant PERSON , noncommissioned officer PERSON , PERSON prosecutor PERSON PERSON and a number of gendarme soldiers arrived at the applicants ' house to arrest PERSON . PERSON was then handcuffed and taken out of the house and into the garden . Other occupants of the house , who were not allowed to leave the house , then heard CARDINAL rounds of gunfire . When they looked out of the window , they saw the first lieutenant hitting PERSON on the head with the butt of his rifle . When PERSON asked the first lieutenant to stop , CARDINAL soldiers began kicking him and hitting him with the butts of their rifles . The first lieutenant then shouted “ kill him ” . When CARDINAL of the soldiers asked them to stop because “ otherwise they would kill ” PERSON , the first lieutenant told the soldier to shut up , before shooting PERSON in the back of the neck at close range . The soldiers then threw PERSON body over the fence surrounding the garden and dragged it down the slope . After the incident the soldiers cleaned up the blood in the garden and took the spent bullet cases with them .", "On DATE first lieutenant PERSON put together a plan to arrest PERSON . The following day the first lieutenant , accompanied by his soldiers and the PERSON prosecutor PERSON , left for the applicants ' village . QUANTITY from the village one of the tyres of the vehicle carrying the prosecutor blew out . As a result , the prosecutor and his driver remained there . The rest of the group continued on their way .", "The soldiers took positions in the form of CARDINAL circles around PERSON ORG 's house before the first lieutenant knocked on the door . PERSON opened the door , ran back inside the house and jumped from the window into the garden at the rear of the house . There he was met by expert sergeant PERSON , who was CARDINAL of the soldiers forming the first circle around the house . When PERSON managed to evade him , the expert sergeant gave chase but was unable to catch up . The expert sergeant then fired into the air at least twice .", "Yılmaz Özcan ran down the slope surrounding the garden for QUANTITY but was caught by private PERSON , who was in the second circle and who had by then heard the gunfire and cocked his rifle . A scuffle then ensued between private PERSON and PERSON and they rolled down the slope , which was very steep . At some point , private PERSON was lying on his back when PERSON made an attempt to escape . ORG then fired his rifle at least twice . CARDINAL of the bullets entered the back of PERSON neck and exited his face , killing him instantly . According to the Government , medical reports revealed that , during their scuffle with PERSON , expert sergeant PERSON suffered injuries which prevented him from working for DATE , and private PERSON suffered injuries which prevented him from working for DATE .", "The following information appears from the documents submitted by the parties .", "According to CARDINAL incident reports prepared by the gendarme soldiers , the soldiers arrived at the village at TIME on DATE . PERSON jumped out of the window of his house , evaded the expert sergeant PERSON who had been waiting in the garden , and started running downhill until he was stopped by private PERSON . A scuffle then ensued between PERSON and private PERSON . During the scuffle PERSON attempted to take private PERSON 's rifle but the rifle went off . As a result , PERSON was shot in the neck and died on the spot .", "At TIME DATE Mr PERSON , who was also a prosecutor in the town of PERSON , arrived at the scene . The relatives of the deceased complained to PERSON that PERSON had been shot and killed in the vicinity of the house and his body had then been dragged down the hill by the soldiers . When the applicants made that complaint to the prosecutor , the soldiers who had taken part in the operation examined the area between the house and the location of the body , and told the prosecutor that there were no bloodstains or MONEY to indicate that the body had been dragged along the ground . While examining the area the soldiers found CARDINAL spent bullet cases discharged from a PERSON type automatic rifle . It later turned out that the bullets had been fired from the expert sergeant PERSON rifle .", "The prosecutor , with the assistance of a doctor , examined the body and observed a large number of injuries on the body as well as a single bullet entry hole on the back of the neck . The body was then taken to PERSON hospital for a full post - mortem examination .", "On DATE the prosecutor PERSON began questioning the soldiers who had taken part in the operation .", "In his statement of DATE private PERSON confirmed the version of events set out in the above - mentioned on - site reports , and added that he did not know how the rifle had come to be fired . ORG was then released by a judge who considered that the “ nature of the offence ” and the fact that private PERSON was “ performing his military service ” did not require him to be remanded in custody .", "Expert sergeant PERSON told the prosecutor DATE that when PERSON had evaded him and started running down the hill , he had fired CARDINAL rounds into the air . He had then given chase and heard CARDINAL or CARDINAL rounds of gunfire emanating from the bottom of the hill . When he arrived at the scene PERSON was already dead .", "The non - commissioned officer PERSON told the prosecutor DATE that he had heard the expert sergeant fire CARDINAL or CARDINAL rounds into the air . He had then started running downhill after PERSON and had heard CARDINAL rounds of gunfire coming from the bottom of the hill . On his arrival at the scene PERSON had already been killed .", "On DATE private PERSON and expert sergeant PERSON were examined at ORG , where the doctors observed a number of bruises on their bodies ( see paragraph CARDINAL in fine above ) .", "The prosecutor questioned first lieutenant PERSON on DATE . The first lieutenant told the prosecutor that on their arrival at his house PERSON had been outside the house and had lied , saying he was not PERSON and that PERSON was his father . He had then gone inside to call his father . The first lieutenant had then heard noises at the back of the house , then the gunfire , but he had not witnessed the incident himself .", "CARDINAL gendarme soldiers questioned by the prosecutor on DATE stated that on their arrival PERSON had been outside the house . CARDINAL of the soldiers said that he had heard a single gunshot from the bottom of the hill , while another one told the prosecutor that he had heard CARDINAL gunshots from the same direction . The remaining QUANTITY soldiers were not sure how many gunshots they had heard .", "On DATE and DATE the prosecutor questioned CARDINAL of the applicants , who are daughters of the deceased PERSON . They stated that a number of soldiers had arrived at their house and had taken their father into the garden . They had then heard their father begging the soldiers to release him but that the soldiers had shot and killed him .", "In the meantime , on DATE a post - mortem examination was carried out on PERSON body at the NORP hospital . It was established that the large number of injuries on Mr NORP 's body had been caused before his death .", "On DATE the ORG prosecutor filed an indictment with ORG and charged private PERSON with manslaughter .", "On DATE members of ORG and an expert visited the area where the incident had taken place . Private Şenel NORP , who claimed to have been standing next to private PERSON at the time of the killing of PERSON , told the expert that at the time of the shooting PERSON back had been turned to private PERSON , who was kneeling down at the time . ORG told the expert , however , that at the time of the shooting he had been lying on his back and trying to push PERSON away . ORG also added that during the scuffle he and PERSON had rolled TIME - five metres down the hill .", "The expert noted in his report that the wife , mother and CARDINAL daughters of the deceased had been consistent when they showed him the location in their garden as the place where they claimed PERSON was shot and killed . Having regard to the conflicting information with which he had been provided by privates PERSON and PERSON , the expert recommended that ORG opinion should be sought , to establish whether the trajectory travelled by the bullet in PERSON head had been compatible with private PERSON version of events .", "On DATE prosecutor ORG decided not to prosecute the gendarmerie personnel – with the exception of private PERSON DATE or the prosecutor PERSON because , “ other than the family 's abstract allegations ” , there was no evidence implicating them in the killing .", "On DATE the ORG prosecutor filed another indictment with ORG and charged the remaining gendarmerie personnel , with the exception of first - lieutenant PERSON , with manslaughter .", "It appears from a report drawn up on DATE pursuant to ORG instructions , that the applicants had lodged a number of official complaints with that Ministry . The author of the report , PERSON PERSON , who was an inspector with ORG , stated in this report that on DATE the PERSON prosecutor PERSON ( see paragraph CARDINAL above ) had drawn up a letter addressed to PERSON inviting him to give himself up to serve his prison sentence . Nevertheless , even before that letter was posted , the same prosecutor had issued an arrest warrant on DATE ( see paragraph CARDINAL above ) and had then himself taken part in the operation to apprehend PERSON . According to the information provided to the inspector by the applicants , the prosecutor PERSON himself had been present when PERSON was allegedly shot and killed in his garden by the first lieutenant . According to the inspector 's report , the prosecutor PERSON defended himself by telling the inspector that the reason why he wanted to take part in the operation was because he wanted to visit the village , as he had never had the opportunity previously . He did not however go to PERSON house , and remained with the vehicle .", "The inspector concluded that prosecutor PERSON , contrary to his denials , had been present during the operation and had neglected his duties by failing to prevent the incident and he had thus contributed to the death of PERSON .", "The inspector also noted that the other prosecutor in PERSON , Mr PERSON ( see paragraph CARDINAL above ) , had given a decision not to prosecute first lieutenant PERSON or prosecutor PERSON without first examining the evidence and eyewitness statements which , in the opinion of the inspector , were credible and deserved further investigation .", "It also appears from this report that when members of ORG visited the village on DATE ( see paragraph CARDINAL above ) , they were assisted by the soldiers who had taken part in the operation during which PERSON was killed . When the deceased PERSON father , wife and CARDINAL of his children DATE that is the applicants PERSON , PERSON , PERSON , PERSON and PERSON – told the prosecutor PERSON that they did not want the soldiers who had been involved in the killing of PERSON to take part in the investigation , criminal proceedings were initiated against them for obstructing the officials in the execution of their duties . When DATE these applicants went to make statements in relation to the charges against them , a judge ordered their detention on remand in a prison . They were subsequently released on bail .", "The inspector also heard a number of eyewitnesses to the events who had not previously been questioned by the prosecutors . These eyewitnesses confirmed that they had seen bloodstains in the garden where the family claimed PERSON was killed . They also stated that they had seen a trail of blood all the way to the bottom of the hill where the soldiers claimed PERSON had been killed by mistake . The inspector also noted that first lieutenant PERSON , non - commissioned officer PERSON and expert sergeant PERSON had given a number of contradictory statements about their movements during the operation .", "The inspector recommended that prosecutors PERSON and ORG be removed from their duties in the town of PERSON . He also recommended that criminal prosecutions be brought against first lieutenant PERSON and prosecutor PERSON in relation to the killing of PERSON .", "On DATE CARDINAL forensic experts working for ORG , acting on a request from ORG , concluded that the large number of injuries on PERSON head , chest , back , arms and legs could not have been caused by jumping from a window or by falling down while running . According to these experts , the injuries had been caused close to the time of death or shortly before it , by hard objects such as stones , sticks , rifle butts or boots worn by military personnel , whereas the lesions on the back of the body had been caused by dragging the body on the floor . It was also established that PERSON had been shot at a range of QUANTITY .", "On DATE the ORG prosecutor filed another indictment with ORG and charged a number of soldiers who had taken part in the operation with making false statements and destroying crucial evidence . On DATE the ORG joined all CARDINAL cases ( see paragraphs CARDINAL above ) .", "On DATE the GPE prosecutor filed an indictment with ORG and charged first lieutenant PERSON and PERSON prosecutor PERSON with manslaughter . On DATE ORG decided that , on account of prosecutor PERSON 's seniority , ORG had the power to try him . All cases mentioned above were then joined and sent to ORG acting as a first instance court . Subsequently , all officers were acquitted , apart from private PERSON ( see paragraph CARDINAL below ) .", "On DATE the First Section of the Court of Cassation 's Criminal Division , sitting as a first - instance court ( “ the trial court ” ) , adopted its judgment in relation to all defendants . According to the judgment , a fourth indictment had apparently also been filed against the defendants , charging them with ill - treatment .", "It appears from the judgment that , immediately after the killing , a number of villagers had seen bloodstains in the garden where the applicants claimed PERSON was shot and killed . They had informed the prosecutor about this but the prosecutor had made no mention of it in his report . The judgment discloses that the applicants had told the investigating authorities that after the shooting the soldiers had collected bloodstained soil from their garden and put it in a box . CARDINAL villager told the investigating authorities that he had found the box with the bloodstained soil in it . This box was subsequently examined for fingerprints but no matching prints were found .", "NORP The trial court noted that the first time the applicants had given evidence to the investigating authorities was DATE after the killing ( see paragraph CARDINAL above ) . In the opinion of the trial court , the applicants ' failure to make statements in the immediate aftermath of the events showed that the applicants had not witnessed the killing , but had made the allegations in order to blame the State for it . Thus , not only the statements made by the applicants but also the statements made by their witnesses were not to be relied on in evidence . On the other hand , there were no legal reasons to disregard the conclusions of the investigations carried out by the soldiers who had themselves had taken part in the investigation . It was “ impossible ” that the soldiers would collude in order to protect the first lieutenant by blaming private PERSON . The fact that the search carried out by those soldiers revealed no traces of bloodstains in the garden was sufficient to conclude that PERSON had not been killed as alleged by the applicants . According to the trial court , a lack of spent bullet cases discharged from private PERSON rifle did not necessarily show that the real perpetrator was somebody else .", "The trial court also considered that ORG above - mentioned conclusion ( see paragraph CARDINAL ) discredited the applicants ' allegation that PERSON had been killed in the garden by the first lieutenant and that his body had then been dragged by the soldiers . According to the “ experience of the judiciary ” , the injuries could have been caused by PERSON falling down the hill while he was trying to escape and by soldiers who were trying to apprehend him . The fact that PERSON had been involved in a scuffle with the soldiers who tried to apprehend him was borne out by medical reports showing that the CARDINAL soldiers had suffered injuries ( see paragraph QUANTITY above ) .", "With the exception of private PERSON who had been charged with manslaughter , the trial court acquitted all the defendants – that is prosecutor PERSON , first lieutenant PERSON , non - commissioned officer PERSON , expert sergeant PERSON and the privates who took part in the operation . The trial court considered that private PERSON had not acted with an intention to kill ; he had pulled the trigger with the aim of catching PERSON and had considered that it would only injure him and not kill him . The trial court sentenced private PERSON to DATE imprisonment but reduced it to DATE and DATE because it considered that private PERSON had killed PERSON in the execution of his duties as a soldier and had later regretted his actions . The trial court also concluded that there was no evidence to show that PERSON had been ill - treated , and acquitted all the defendants charged with that offence .", "On DATE ORG of ORG ( “ the appeal court ” ) rejected the appeal lodged by the applicants . Like the trial court , the appeal court also considered that ORG conclusions discredited the applicants ' allegations .", "According to a document submitted to the ORG by the applicants , the appeal court 's decision was served on the first applicant PERSON Hacı PERSON on DATE “ in accordance with the letter of ORG President ” .", "In DATE the applicants brought proceedings against ORG and claimed compensation for the killing of PERSON . On DATE the ORG observed that Mr ORG had been killed by a soldier and there had thus been a connection between the killing and the compensation claim . It awarded the applicants the sum of MONEY ( ORG ) in compensation for their pecuniary and non - pecuniary damage . This decision became final following the dismissal by ORG on DATE of the appeals lodged by the applicants as well as by ORG ." ]

[ "2", "3" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant is a GPE ’s Witness . From DATE he attended various GPE ’s Witnesses religious services and was baptised on DATE at DATE .", "On DATE the applicant was registered as a person liable for military service with ORG .", "In DATE , when the applicant turned DATE , he advised the military commissariat by letter that he refused to serve in the military because of his religious beliefs . At that time , he also left home being afraid that he would be taken to the military by force .", "During DATE , according to the applicant , military personnel harassed his family in an attempt to force him to join the military .", "On DATE the applicant sent identical letters to ORG , ORG of GPE , the Military Commissioner of GPE , the LOC District Prosecutor ’s Office and ORG , stating that it was contrary to his conscience and religious beliefs to serve in the military and that he was willing to perform alternative civilian service .", "By a letter of DATE the applicant was informed in writing by the LOC District Prosecutor ’s Office that no criminal proceedings would be brought against him , if he reported for military service . The letter also urged the applicant to fulfil his civic and filial duty to his motherland and to go through the school of maturity in the form of military service .", "DATE after receiving the above letter , the applicant was contacted by assistant prosecutor PERSON The applicant went to meet PERSON in DATE . According to the applicant , he was told that a criminal case would not be initiated and that he would be forced to perform military service . The applicant was accused of being a traitor to his country , his religious beliefs were ridiculed , and he was mocked and cursed because he would not serve in the military .", "On DATE the applicant sent another letter to the authorities once again explaining the reasons for his refusal to serve in the army .", "On DATE criminal proceedings were instituted under LAW of LAW on account of the applicant ’s draft evasion .", "On DATE a formal charge of draft evasion was brought against the applicant and a search was declared for him .", "On DATE the LOC ORG of GPE ordered the applicant ’s detention on remand and authorised the monitoring of his correspondence .", "On DATE the applicant , having learnt that a criminal case had been initiated against him , went to the Malatia - Sebastia District Prosecutor ’s Office where he was immediately placed under arrest .", "On DATE the applicant was released after signing an undertaking not to leave his place of residence .", "On DATE the ORG of GPE found the applicant guilty as charged and sentenced him to DATE in prison .", "On an unspecified date the applicant appealed .", "On CARDINAL DATE ORG upheld the judgment of ORG .", "On DATE the applicant appealed , arguing , inter alia , that his conviction violated his rights guaranteed by LAW .", "On CARDINAL DATE ORG upheld the applicant ’s conviction .", "On DATE the applicant was imprisoned .", "On DATE the applicant was released on parole after having served DATE of his sentence .", "For a summary of the relevant domestic provisions see the judgment in the case of PERSON v. GPE ( [ ORG ] , no . CARDINAL , § § DATE , DATE ) ." ]

[ "9" ]

[ "9-1" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant was issued an occupancy voucher ( yaşayış orderi ) to an apartment in a recently constructed residential building in GPE on the basis of ORG order of DATE .", "At the same time , the applicant became aware that the apartment was occupied by PERSON and his family , who were internally displaced persons ( “ ORG ” ) from ORG , a region under occupation of NORP military forces following the NORP - GPE conflict over GPE - Karabakh .", "According to the applicant , despite her numerous demands , PERSON refused to vacate the apartment noting that he was an ORG and he had no other place to reside in .", "On an unspecified date in DATE , the applicant lodged a lawsuit with ORG asking the court to order the eviction of PERSON and his family from the apartment .", "On DATE the ORG granted the applicant 's request . The court held that the applicant was the sole lawful tenant of the apartment on the basis of the occupancy voucher of DATE and , therefore , the apartment was 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 after its delivery .", "According to the applicant , PERSON and his family refused to comply with the judgment and the competent authorities did not take any measures to enforce it .", "It appears from the case file that in DATE the applicant lodged compensation proceedings against ORG claiming EUR CARDINAL for unlawful use of her flat by an ORG family . On DATE ORG dismissed the applicant 's claim as unsubstantiated . On DATE ORG and on DATE ORG upheld ORG judgment of DATE .", "At the time of the latest communication with the applicant , the judgment of DATE in the applicant 's favour remained unenforced .", "The relevant domestic law is summarised in PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) ." ]

[ "6" ]

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[ "The first applicant , Mr PERSON , was born in DATE . The second applicant , PERSON , was born in DATE . The third applicant , Mr PERSON , was born in DATE . The applicants live in GPE . The second and the third applicants are parents of the first applicant .", "In DATE the first applicant bought part of a building , including a cellar and warehouse , and a plot of land adjacent to the building . The seller of the property , ORG , had purchased it from the local authorities .", "In DATE the first applicant ’s neighbour , PERSON , bought another flat in the same building . The privatisation agreement concluded with the local authorities stipulated that PERSON had also acquired part of the warehouse and the cellar .", "On DATE PERSON brought an action requesting annulment of the decisions whereby part of the land adjacent to the building had been sold to the first applicant .", "On an unspecified date the parties brought new interlocutory claims regarding the ownership of the warehouse .", "On DATE the GPE Third ORG granted the action of PERSON in part and ordered the local authorities to readjust the borders of the plot of land at issue .", "On DATE ORG quashed the decision and returned the case for examination de novo . It was established that the lower court had ruled on claims which had not been put forward by the parties and that the court had not assessed whether the rights of PERSON had been breached . Moreover , the local authority should have been invited to join the proceedings as a third party .", "On DATE several additional claims were brought by ORG .. The applicant submitted a new counterclaim , requesting non - pecuniary damages .", "On DATE the Vilnius City Third ORG dismissed the action of PERSON , accepting the first applicant ’s claims in part . In particular , the court declared null and void the agreement whereby PERSON had acquired CARDINAL of the warehouse .", "On CARDINAL DATE ORG quashed the decision due to various procedural flaws , in particular the failure to resolve the question of the amount of the court fee to be paid . It was also noted that the lower court had failed to request certain evidence and therefore had not established certain facts relating to the property at issue . It also failed to establish whether ORG had acquired the land from the local authority lawfully . The case was remitted to the Vilnius City Third ORG for a fresh examination .", "On an unspecified date in DATE , PERSON brought several new claims . He requested , inter alia , that the first applicant be obliged to grant him access to the cellar in the building . On DATE the first applicant submitted a counterclaim .", "On DATE the Vilnius City Third ORG granted the action of PERSON It was established that ORG had unlawfully obtained a bigger plot of land than the one she was entitled to , thereby breaching the rights of ORG had had no right to sell that plot to the first applicant , the court annulled the contract between the first applicant and ORG and ordered full restitution . The first applicant was also instructed not to obstruct access by PERSON to the cellar . The first applicant ’s counterclaims regarding the warehouse were dismissed as unsubstantiated . The local authority and the first applicant appealed .", "On DATE ORG upheld the decision .", "On DATE the first applicant lodged a cassation appeal asking ORG to quash the lower court ’s decision and to adopt a new decision without remitting the case for further examination .", "On DATE ORG dismissed the first applicant ’s cassation appeal and left the lower courts’ decisions unchanged .", "LAW stipulates :", "“ The person whose constitutional rights or freedoms are violated shall have the right to apply to court . ”", "The Civil Code , in force until DATE , provided :", "“ The person who causes damage to a natural person or to his property ... must compensate it fully , except in cases prescribed by laws ...", "A person who causes damage is exempted from liability if he proves that the damage was not caused through his fault .", "Damage caused by lawful acts must be compensated only in cases established by law ... ”", "Article QUANTITY of LAW , in force since DATE , provides :", "“ CARDINAL . The ORG shall be liable to full compensation for the damage caused by unlawful actions of a judge or the court trying a civil case , where the damage is caused through the fault of the judge himself or that of any other court official .", "In addition to pecuniary damage , the aggrieved person shall be entitled to non - pecuniary damage . ”", "The ruling of ORG of DATE stipulates :", "“ ... by virtue of the LAW , a person has the right to claim compensation for damage caused by the unlawful actions of ORG institutions and agents , even if such compensation is not foreseen by law ; the courts adjudicating such cases ... have the power to award appropriate compensation by directly applying the principles of the LAW ... as well as the general principles of law , while being guided inter alia by the principle of reasonableness , etc ” ." ]

[ "6" ]

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[ "The applicants , Mr Cecil Pace and Mr PERSON , are CARDINAL NORP nationals who were born respectively in DATE and DATE and live in GPE ( GPE ) . They are represented before the ORG by Mr PERSON and PERSON , CARDINAL lawyers practising in GPE .", "s , may be summarised as follows .", "The applicants are principal shareholders of ORG ( hereinafter , the “ ORG ” ) .", "On DATE the licence of ORG was temporarily suspended . Pursuant to LAW of LAW DATE and after consultation with ORG , ORG appointed a controller and charged him to assume all the powers of ORG and of the shareholders of ORG . The controller was requested to take care of the assets and liabilities of ORG and of its associated companies with a view to safeguarding the rights and interests of the depositors , creditors and shareholders and to liquidate the assets for eventual distribution .", "DATE the applicants filed several lawsuits before ORG ( FAC ) against the controller , alleging that he was responsible for mismanagement and that his behaviour had been abusive and illegal . They claimed that the assets of ORG were being dissipated or sold for a derisory price , that debts were not being collected and recovered , that inventories were not being made and that proper documentation of the transactions was not being kept .", "Several sittings took place before ORG and evidence started to be collected .", "While the proceedings were pending , Act ORG of DATE ( Controlled Companies Act – Chapter CARDINAL of the Laws of Malta ) was enacted . It created a body called “ ORG ” . All the lawsuits and claims made by the applicants and pending before ORG were transferred to this body , which had become competent to hear and determine them .", "ORG was to be composed of CARDINAL members , a Chairman and CARDINAL experts in banking or financial services appointed by ORG . The duration of their office , which would have been established in the Minister ’s letter of appointment , could not exceed DATE . An Appeal on points of law before ORG was available against the decisions of ORG .", "According to LAW ORG of DATE no action lay against the controller , ORG or the Government for anything which had been done in accordance with the provisions of the LAW from the date of the appointment of the controller .", "Under LAW ORG of DATE the controller had the power of striking off the names of a bank and of its associated companies from the register of companies . He could also decide to deliver documents to the registrar . These documents were to be destroyed after DATE .", "In DATE the applicants introduced a claim ( no . CARDINAL/CARDINAL ) before ORG ( FAC ) in its constitutional jurisdiction . They alleged that the changes introduced by LAW of DATE were specifically aimed at depriving them of the possibility of having a fair trail .", "The applicants submitted that , in view of its nature and composition , ORG could not be regarded as an impartial and independent tribunal .", "In a judgment delivered on an unspecified date , ORG dismissed the ORG claim . It found that there had been no violation of LAW , since this provision did not require a body such as ORG to have the same level of independence and impartiality as a “ tribunal ” .", "ORG held that ORG was objectively independent as its decisions were not based on directives issued by any authority . Furthermore , it was free from subjection to any other party . The fact that the members of ORG were appointed for DATE with a possibility of reappointment at the expiry of their term of office did not mean that they would not enjoy sufficient guarantees against outside pressures .", "The applicants appealed to ORG .", "In a judgment of DATE , ORG rejected the ORG appeal and confirmed ORG judgment . It noted that LAW referred to a court or other authority instituted by law , while the Convention referred to an “ impartial tribunal ” . Thus , civil rights might be determined by both these institutions .", "In ORG view , there were no doubts as to the personal impartiality of the members of the board . As to the ORG argument that a lack of objective impartiality could be inferred from the fact that the members of the board were nominated by ORG , who was the defendant in the lawsuits they had introduced , ORG observed that the law applied equally to everybody and that the authority who appointed the board was of little relevance . In any case , the manner of appointment of the Chairman and of the members of ORG did not raise any objectively justified doubts as to their impartiality and independence , as they had no relationship of employment or dependence with ORG . The board was allowed to make its decisions freely and independently of any pressure or influence . Its members could not be arbitrarily dismissed . ORG also held that Act XVII of DATE guaranteed a fair trial .", "In the meantime , the applicants had introduced another claim ( no . GPE ) before ORG ( FAC ) in its constitutional jurisdiction . They submitted that since the decisions of ORG were final in so far as they determined points of fact , the previous existing benefit of double examination had been lost . Furthermore , in view of the retroactive immunity granted by LAW XVII of DATE to the controller , to ORG and to the Government , nobody could be held legally responsible for the dissipation of their assets and negligent and illegal behaviour in administrating their financial interests . Therefore , even if their lawsuits were well - founded , the applicants could not obtain a judgment against the defendants or enforce it . In addition , they submitted that LAW ORG of DATE also provided for the removal of a company ’s name from the register of companies , which entailed the archiving and destruction of the company ’s files . This could result in the obliteration of evidence which the applicants might need to use .", "In a judgment of CARDINAL DATE , ORG declared that Act XVII of DATE had breached the applicants’ right to continue their pending cases within a reasonable time and to have an effective remedy before a national authority . Therefore , it held that the lawsuits instituted by the applicants before the entry into force of this LAW should be decided by ORG in accordance with the pre - existing rules , and not by ORG .", "ORG held that it was not competent to decide upon the alleged legal immunity of the controller . It also rejected the ORG complaint regarding the destruction of the documents as ordinary remedies were available to avoid such actions being taken .", "The Attorney General appealed to ORG . The applicants lodged a cross appeal .", "In a judgment of CARDINAL DATE , ORG confirmed ORG decision in so far as it concerned the finding of a violation of the applicants’ right to a trial within a reasonable time .", "It observed that in its previous judgment of DATE , it had held that ORG had the necessary requirements of independence and impartiality . However , this did not mean that a transfer of cases from ORG to the board would have been licit and legal , especially since it might have diminished the rights and remedies enjoyed by the parties .", "In particular , under LAW of DATE the parties were not entitled to an appeal on points of fact ( as guaranteed by the previous rules ) , but could only challenge the points of law decided by ORG before ORG . Therefore , the parties had lost pendente lite the right to a full appeal . This constituted a violation of LAW", "ORG furthermore held that it was legitimate to grant immunity to the controller and to ORG . However , LAW could not be interpreted as conferring a general immunity . As no one could be considered to be above the law , the controller could have been protected against judicial actions only in so far as he had acted in good faith . He would still be liable if it was proved that he had acted in bad faith .", "As to the powers given to the controller by LAW ORG of DATE , ORG observed that under domestic law the applicants could have made use of other ordinary remedies in order to obtain the production of any relevant document . It had not been shown that the applicants had been illegally denied this right .", "In a fax of DATE , the applicants informed the ORG that they had not introduced any lawsuit after DATE . The lawsuits filed against the controller of ORG and against ORG before DATE were suspended awaiting the outcome of the applicants’ constitutional claims . They were resumed after the delivery of ORG judgment of DATE and were , on DATE , still pending .", "The composition and the method of appointment of ORG are described in LAW ORG of DATE , which reads as follows :", "“ ( CARDINAL ) For the purpose of this LAW there shall be constituted a ORG to be styled ORG which shall consist of a Chairman and CARDINAL other members appointed by the Minister .", "( CARDINAL ) The members of the ORG shall , before entering upon their office , take before the Attorney General the oath to examine and decide any matter referred to them with equity and impartiality .", "( CARDINAL ) The Chairman shall be an advocate with a minimum of CARDINAL years’ legal practice .", "( CARDINAL ) The CARDINAL other members mentioned in sub article ( CARDINAL ) shall be persons who in the opinion of the Minister , possess the necessary expertise and experience in banking or financial services .", "( CARDINAL ) The members of the ORG shall be appointed for such period that the minister may establish in the letter of appointment , which period shall not exceed DATE , and may only be removed by the Minister on the advice of ORG on the grounds of proved inability to perform the functions of their office whether arising from infirmity of body or mind or any other cause , or proved misbehaviour . ”", "According to LAW ,", "“ The decisions of the ORG shall be final except with respect to points of law decided by ORG from which an appeal shall lie to ORG . ”", "Under LAW of DATE , ORG is required to appoint a controller in order to manage the assets and interests of a company whose licence has been restricted or revoked .", "The controller is granted an immunity under LAW , which reads as follows :", "“ No action shall lie against the ORG , ORG or the Government for anything done under the authority of this LAW or of LAW and this article shall apply from the date of appointment of the PERSON even if that date happens to be before DATE of the coming into force of this LAW . ”", "The controller ’s power to strike off names of companies from the register of companies is provided for by LAW , according to which :", "“ ( CARDINAL ) The ORG shall also , in accordance with LAW or any other provision of any other law substituting the said Ordinance , deliver to the Registrar for registration by him a notice of such approval , and the Registrar shall thereupon strike the name of the company or partnership off the register .", "( CARDINAL ) The ORG shall , together with the aforesaid notice , deliver the books and other documents of the company to the Registrar , who shall keep them for DATE from the date at which the name of the company or partnership was struck off the register . ”" ]

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[ "The applicant is the divorced mother of CARDINAL children , born in DATE and DATE . Her children live mostly with their father ( the “ parent with care ” ) spending DATE with her ( the “ non - resident ” parent ) . Since DATE , the applicant has lived with a woman in what was described during the domestic proceedings as a “ close , loving and monogamous relationship characterised by long - term sexual intimacy ” . She and her partner own the house they live in as joint tenants . They purchased the property with a joint mortgage , and have held a joint bank account since DATE .", "The applicant is required to contribute to the cost of her children 's upbringing in accordance with the applicable regulations on child maintenance ( see paragraph CARDINAL below ) . On DATE , the Secretary of ORG decided that the applicant 's maintenance payment should be ORG DATE , with effect from DATE . The applicant disputed that decision on a number of grounds , including that it did not make full allowance for her housing costs . On DATE , the Secretary of ORG declined to revise his decision . On DATE , the maintenance assessment was reduced to GBP CARDINAL per week , due to changed circumstances unrelated to the applicant 's complaint of discrimination . Her complaint thus relates to the period that began on CARDINAL DATE and ended on DATE .", "The applicant appealed against the initial maintenance assessment . ORG allowed the appeal on DATE . The ORG considered it appropriate to compare the applicant 's situation to that of an individual who was part of a heterosexual couple ( married or unmarried ) , and that there clearly was a difference in treatment in the determination of the child maintenance obligation . It held that the situation came within the ambit of LAW No . CARDINAL , which was not confined to situations in which property was transferred to the ORG . The direct involvement of ORG in the process and its powers of enforcement meant that the responsibility of the ORG was engaged . The ORG found that the Government had not advanced any specific explanation or justification for the difference in treatment , which it therefore held to be discriminatory . It further found that it was possible to provide a remedy to the applicant by re - interpreting the definition of an “ unmarried couple ” in the applicable regulations so that it included samesex couples .", "NORP The Secretary of ORG appealed against this decision to the Child Support Commissioner , who rejected the appeal on DATE . The Commissioner held that “ a gay relationship can be a family for the purpose of [ A]rticle CARDINAL ” . He saw no reason , in the context of child support legislation , to distinguish between families according to the sexual orientation of the partners . The purpose of the regulations was to determine the financial obligation of the absent parent , a matter on which his or her sexual orientation should have no bearing . Accordingly , the applicant 's situation was within the ambit of the right to respect for family life . He rejected , however , the applicant 's argument that the situation also came within the ambit of LAW No . CARDINAL . Turning to LAW , the Commissioner found that , in the context of child support payments , the applicant 's situation was analogous to that of an absent parent living with a heterosexual partner , who , all other things being equal , would have been required to pay around ORG DATE instead of almost GBP DATE . He considered that the Government had not advanced any justification for treating the applicant differently and therefore ruled that the child support scheme violated the applicant 's Convention right under LAW read in conjunction with LAW Concerning the remedy , he disagreed with the approach of ORG . Instead , since the regulations defined the various terms used by the regulations “ unless the context otherwise requires ” , he considered that , with the entry into force of LAW on DATE , the “ context ” now included the absent parent 's Convention rights . Therefore , the definition of an unmarried couple ( “ a man and a woman who are not married to each other but are living together as husband and wife ” ) did not apply in this situation .", "NORP The Secretary of ORG appealed against this decision to ORG . By a judgment given on DATE , that court upheld the Commissioner 's decision . Lord Justice PERSON considered that the applicant 's previous family life ( i.e. the relationship between herself , her former husband and her children ) was not within the ambit of LAW . As for her relationship with her partner , he read the decision of ORG in PERSON v. GPE DATE . ) , no . CARDINAL , ORG ORG as establishing that the question whether same - sex relationships fall within Article CARDINAL is a matter of domestic law . Citing a number of domestic precedents which treated same - sex couples as no different from heterosexual couples in certain contexts , he considered that the applicant 's relationship constituted family life for the purposes of the case . Any discrimination against the applicant on the grounds of her sexual orientation called for compelling and proportionate justification . He found that the child support scheme impinged in some significant degree on the family life of the applicant and her partner , bringing their situation within the ambit of Article CARDINAL . As the scheme discriminated against the applicant on grounds of her sexual orientation , Article CARDINAL was engaged . He rejected the argument that the scheme came within the ambit of the applicant 's private life , since the scheme did not set out to recognise the applicant 's sexual orientation . Regarding Article CARDINAL of Protocol No . CARDINAL , he considered it unnecessary to decide if it too was engaged , although he doubted that it was . He found that the Government had not provided any acceptable justification for the discrimination against the applicant . He rejected the arguments advanced on behalf of the Secretary of ORG about the difficulty of correcting a problem that was but CARDINAL instance of a distinction applied throughout the wider social security system , observing that there was no doctrine of justification by the logistics of reform . As for a remedy , he considered that the appropriate course was to disapply ( in effect delete ) the definition in the regulations of an unmarried couple so as to eliminate the requirement of heterosexuality .", "Lord Justice PERSON held that the child support regulations did , in principle , come within the ambit of LAW , since they were based on the relationship between the absent parent and his / her children . However , the applicant 's complaint concerned a wholly different family unit , i.e. her relationship with her partner . He too rejected the argument that the situation came within the ambit of the applicant 's private life , finding that this had not been interfered with . Regarding LAW No . CARDINAL , he accepted that the situation came within the scope of that provision since a possession of the applicant 's ( money ) was being taken away from her under rules that left her worse off than a person in a position identical to hers in all respects save for their sexual orientation . As for the applicant 's argument that her relationship came within the concept of family life , he took the view that , ORG having considered this issue to be within GPE ' margin of appreciation , it was open to the domestic courts to decide the point for GPE . His conclusion was that , having regard to the relevant ORG case - law , same - sex relationships should be treated in the same way as heterosexual relationships for the purpose of LAW . He further concluded that the relevant provision of LAW had been enacted out of respect for family life – in this case the relationship between the absent parent and his / her new partner . Accordingly , the applicant 's situation came within the ambit of LAW . He concurred with Lord Justice PERSON that the Government had not provided an adequate justification , and agreed with the proposed remedy .", "Lord Justice PERSON reviewed both domestic and Convention caselaw and concluded that the applicant could not rely on the words “ family life ” in DATE in order to say that the facts of her case fell within the ambit of that Article . Nor did the situation come within the ambit of the applicant 's right to respect for her private life . Though her relationship with her partner was an aspect of her private life , the applicant had not been penalised on account of it . Her real complaint was that she was unable to take advantage of a benefit that was available to a category of absent parents since she did not come within that category . As regards LAW No . CARDINAL , he found that this provision was not engaged . The child support scheme was concerned with the allocation of assets to discharge an existing obligation . To hold that any situation in which there was a net adverse financial impact on an individual constituted a prima facie deprivation of possessions would be an unacceptably broad interpretation . There would be almost no limit to the circumstances in which that provision would be sufficiently engaged for the purposes of LAW .", "NORP The decision of ORG was appealed by the Secretary of ORG to ORG which , in a judgment of DATE , allowed the appeal , by a majority of CARDINAL to one .", "Addressing the question whether the application of the relevant regulations to the applicant came within the ambit of LAW , Lord PERSON ( with whom Lord GPE agreed ) observed that :", "“ [ CARDINAL GPE case - law does not , and could not , spell out any simple bright - line test for determining how close must be the link between the alleged discrimination and the rights granted by the substantive article . ”", "He rejected the contention that since the concept of respect for private and family life was so wide and multifaceted , any alleged act of discrimination would be within the ambit of LAW . He considered that , in relation to LAW , the GPE case - law revealed a more nuanced approach , reflecting the unique feature of DATE the duty of the ORG to accord respect . Some measures were so intrusive that they plainly failed to respect an individual 's private life , whereas less serious interferences would not merely not breach LAW , they would not fall within its ambit at all . He further noted that the case - law concerning alleged discrimination in relation to the family life limb of LAW had concerned measures very closely connected to family life . He was prepared to assume that the applicant , her new partner and their children from their previous marriages should be regarded as a family for the purposes of LAW . He also accepted that the regulations , inasmuch as they sought to strike a fair balance between the demands arising out of the raising of children and the running of the new household , were intended in a general sort of way to be a positive measure promoting family life . However , the link between them and respect for the applicant 's family life was too tenuous to bring the situation within the ambit of the family life limb of LAW . The link to respect for the applicant 's private life was even more remote , in his view . As regards LAW No . CARDINAL , he considered that the obligation to pay maintenance was very different to expropriation and therefore did not come within the ambit of this provision .", "Lord PERSON then considered whether the difference in treatment in same - sex couples in such circumstances was discriminatory . He held that ORG had acted with reasonable promptness and within its margin of appreciation in the complex and time - consuming process of drafting , adopting and giving effect to LAW . GPE may have only followed the lead given by other Member States of ORG , but it had not been so far behind as to go outside its margin of appreciation . While it could not be argued DATE that discrimination against homosexuals had ever been justifiable , he thought this a “ deeply unrealistic ” approach to the issue . For DATE , homosexual couples living together were regarded as quite different to married or unmarried heterosexual couples . Profound cultural changes took time .", "Lord PERSON described the applicant 's complaint about discrimination as “ anachronistic ” :", "“ By that I mean that she is applying the standards of DATE to criticise a regime which when it was established represented the accepted values of our society , which has now been brought to an end because it no longer does so but which could not , with the support of the public , have been brought to an end very much earlier . ... If such a regime were to be established DATE , PERSON could with good reason stigmatise the regime as unjustifiably discriminatory . But it is unrealistic to stigmatise as unjustifiably discriminatory a regime which , given the size of the overall task and the need to recruit the support of the public , could scarcely have been reformed sooner . ”", "Lord PERSON took the view that , while this was not its primary purpose , the statutory scheme did demonstrate the respect of GPE for the non - resident parent 's new family life by means of the statutory scheme . It could therefore be said that this feature of the scheme was one of the modalities of the exercise of the right to respect for family life . This would be sufficient to bring the situation within the ambit of LAW . He then considered the position of same - sex couples . In certain contexts , domestic case - law had established that a same - sex couple was as much capable of constituting a family as a heterosexual couple . In the context of LAW , however , the concept of “ family life ” could only have one proper interpretation for all of GPE . The GPE case - law did not yet recognise that the guarantee of respect for family life applied to same - sex relationships and there was no good reason for the courts of GPE to depart from that position . He rejected the argument that the situation came within the ambit of respect for private life . The statutory formulae set out to respect the new family life of an absent parent who had entered into a heterosexual relationship , and not the private life of each party to that relationship . The statutory scheme was therefore not one of the modalities of the exercise of the guarantee of the right to respect for private life . The nature of the discrimination alleged was not sufficient to engage that provision ; otherwise , every case of discrimination on the ground of sexual orientation would be within the ambit of LAW . He further observed that the applicant had not pointed to any significant impact on her lifestyle . As regards LAW , he found that the statutory scheme was far outside this provision 's scope . The duty to pay child maintenance was very distant from the type of interference the provision was aimed at . While it was accordingly not necessary to consider the issue of justification , he indicated his agreement with the position of ORG and PERSON .", "For Lord PERSON there were CARDINAL critical issues : whether the applicant 's same - sex relationship was to be regarded as family life for the purpose of DATE ; and whether the child support regime impinged sufficiently on that family life for it to be said to fall within its ambit . Regarding the latter issue , his view was that the regime did , “ though only just ” . The MASC regulations sought to avoid any unduly adverse impact on the absent parent 's new relationship and to achieve a fair balance between it and the children 's needs .", "As for the first issue , ORG had made it clear in DATE that same - sex relationships did not fall within the scope of the right to respect for family life . As the applicant 's appeal related to a period shortly after that decision ( CARDINAL DATE ) , her relationship with her partner could not be regarded as a type of family life within the meaning of LAW . He added that he had little doubt that ORG would see the position in DATE as having changed very considerably , and that if the issue were to arise before it again , the applicant 's relationship could very well be regarded as involving family life for the purpose of LAW . Great change had taken place across LOC in the intervening time , of which any court would take most careful account . There was no basis for criticising GPE for delay either in reviewing the relevant laws or in moving to amend them in light of such review . Although from a moral viewpoint discrimination against same - sex couples had never been justified , it was the legal position that was at issue . Until quite recently neither ORG nor the domestic courts would have viewed such relationships as involving family life . It followed that discrimination between these and heterosexual couples did not contravene LAW taken with LAW . In relation to the applicant 's private life , he observed that the regulations were not directed at her private life . Any link between them would be as tenuous in the extreme . LAW No . CARDINAL , he considered it artificial to view child support payments as a deprivation of the absent parent 's possessions . The mere fact that there was a net adverse financial impact for the applicant was insufficient . While the scheme was undoubtedly introduced in pursuit of a legitimate social policy , there was no element of expropriation about it . The complaint did not fall within the ambit of LAW , therefore LAW was not engaged .", "Baroness PERSON , dissenting , considered that the appeal should be rejected . She found that the child support scheme , which was CARDINAL aspect of the ORG 's support for family life , clearly fell within the ambit of the applicant 's right to respect for her family life with her children . The scheme was the ORG 's way of enforcing a parent 's duty to support their children , which was an obligation in both private and public law . There were many ways that the operation of the scheme could impact upon that family life . It did not have to have so severe an impact as to breach LAW , but she considered it clear that the scheme fell within the reach of the applicant 's right to respect for family life with her children . She observed that if , for example , the scheme treated absent mothers differently to absent fathers , this would be sufficient to engage LAW . The lack of respect manifested by the scheme for the applicant 's relationship did not have to reach such a level of severity as to constitute a breach of LAW CARDINAL to come into play . Although the Convention case - law had not yet recognised the relationship between CARDINAL adult homosexuals as a form of family life within the meaning of Article CARDINAL , in this case the applicant and her partner enjoyed family life when their children were with them , and this did not cease when they were apart from them . She further considered that the situation also came within the ambit of the applicant 's right to respect for her private life . It was therefore unnecessary to inquire whether LAW No . CARDINAL was engaged .", "The only justification offered for the difference in treatment was the historical discrimination between the CARDINAL types of relationship by social security and child maintenance rules . It was now recognised that there was no objective justification . While it had been taken for granted that the protection of the institution of marriage could justify less favourable treatment of the unmarried , it still had to be shown that in order to achieve that aim it was necessary to exclude same - sex couples . This had not been shown . With LAW , GPE had moved ahead of many other GPE , but this was not an objective justification for not doing so sooner . Racial and sex discrimination had always been wrong , long before this was recognised in law . In the area of gender , the historical and systematic character of discrimination against women could justify some continuing small adjustments in their favour in the benefits system . But this could not apply to sexual orientation – it would mean relying on historical disadvantage and exclusion to justify continued disadvantage and exclusion of the excluded group . It was to be welcomed that ORG had legislated in this area , but that did not make right what had been done before . She concluded that the applicant had suffered discrimination in the enjoyment of the LAW right to respect for private and family life , and approved the remedy suggested by ORG .", "LAW CARDINAL ( “ the DATE LAW ) introduced a system intended to improve the assessment , collection and enforcement of payments for the maintenance of children whose parents are living apart . Until DATE , the system was administered by ORG ( “ the CSA ” ) , which was part of ORG . All the relevant duties , powers and discretions were thus conferred on the Secretary of ORG responsible for this government department . The calculation of a parent 's child maintenance obligation is determined by LAW of and Schedule CARDINAL to the CARDINAL LAW , and by ORG Regulations DATE SI CARDINAL ( the “ MASC regulations ” ) , which have been subject to frequent and extensive amendment . In the domestic proceedings , the courts considered the regulations as they stood before DATE .", "In ORG , Lord PERSON explained and cited the relevant provisions as follows :", "“ The DATE LAW contain a multiplicity of special definitions : ' assessable income ' , ' net income ' , ' exempt income ' , ' disposable income ' and ' protected income ' . The non - resident parent 's liability depends primarily on his or her assessable income , which is net income less exempt income ( para CARDINAL of Schedule CARDINAL to the CARDINAL Act ) . There are complex provisions for determining net income ( Regulation CARDINAL of and Schedules CARDINAL and CARDINAL to the Regulations ) and exempt income , which includes an amount in respect of housing costs ( Regulations CARDINAL , DATE , DATE , DATE and DATE of and Schedule PERCENT ) . The higher the exempt income the smaller the maintenance assessment will be in respect of any particular level of assessable income . There is also a further mechanism ( described by the Child Support Commissioner as a kind of long stop ) securing that the non - resident parent 's disposable income does not fall below the level of his or her protected income ( para CARDINAL of Schedule CARDINAL to LAW and CARDINAL of the Regulations ) .", "I now come to some definitions in regulation CARDINAL ) of the ORG which are of central importance to the appeal ( all applicable unless the context otherwise requires ) :", "' ' family ' means—", "...", "( a ) a married or unmarried couple ... and any child or children living with them for whom CARDINAL member of DATE to day care ...", "' married couple ' means a man and a woman who are married to each other and are members of the same household .", "' partner ' means—", "( a ) in relation to a member of a married or unmarried couple who are living together , the other member of that couple . . .", "' unmarried couple ' means a man and a woman who are not married to each other but are living together as husband and wife . '", "These definitions are closely similar to , but not identical with , definitions of the same expressions in the Social Security Contributions and Benefits Act DATE , section CARDINAL(CARDINAL ) .", "Paragraph CARDINAL of Schedule CARDINAL to the DATE LAW as follows :", "' ( CARDINAL ) The amount which is to be taken for the purposes of this paragraph as an absent parent 's disposable income shall be calculated , or estimated , in accordance with regulations made by the Secretary of ORG .", "( CARDINAL ) Regulations made under sub - paragraph ( CARDINAL ) may , in particular , provide that , in such circumstances and to such extent as may be prescribed—", "( a ) income of any child who is living in the same household with the absent parent ;", "and", "( b ) where the absent parent is living together in the same household with another adult of the opposite sex ( regardless of whether or not they are FAC of that other adult ,", "is to be treated as the absent parent 's income for the purposes of calculating his disposable income . '", "LAW ( made , the Child Support Commissioner observed , under regulation CARDINAL(CARDINAL ) ) deals with protected income . Under LAW ) it is material whether or not the non - resident parent has a partner . Under regulation ORG ) housing costs come into the calculation of protected income . Under regulation CARDINAL ) it is material whether there is a child who is a member of the family of the non - resident parent .", "Regulation CARDINAL is one of the regulations dealing with housing costs . Regulation CARDINAL(CARDINAL ) , so far as now relevant , provides as follows :", "' Where a parent has eligible housing costs and another person who is not a member of his family is also liable to make payments in respect of the home , the amount of the parent 's housing costs shall be his share of those costs ... '", "Schedule CARDINAL of the Regulations also relates to housing costs . Paragraph CARDINAL , so far as now relevant , provides as follows :", "' ( CARDINAL ) Subject to the following provisions of this paragraph the housing costs referred to in this Schedule shall be included as housing costs only where—", "...", "( b ) the parent or , if he is one of a family , he or a member of his family , is responsible for those costs ... '", "The Government in their observations have also referred to ORG the “ LAW ” ) , the relevant provision of which reads as follows :", "Partner 's contribution to housing costs", "A case shall constitute a case for the purposes of paragraph CARDINAL ) of Schedule CARDINAL to the Act where a partner of the non - applicant occupies the home with him and the Secretary of ORG considers that it is reasonable for that partner to contribute to the payment of the housing costs of the non - applicant .", "Schedule CARDINAL of LAW CARDINAL amended paragraph CARDINAL(CARDINAL)(b ) of Schedule CARDINAL of the CARDINAL Act as follows :", "\" ( b ) where the absent parent—", "( i ) is living together in the same household with another adult of the opposite sex ( regardless of whether or not they are married ) ,", "( ii ) is living together in the same household with another adult of the same sex who is his civil partner , or", "( iii ) is living together in the same household with another adult of the same sex as if they were civil partners ,", "income of that other adult , \" ." ]

[ "14", "P1" ]

[ "P1-1" ]

[]

[]

[]

[]

[ "The applicant was born in DATE and lives in GPE , Cherkasy region .", "In DATE the applicant instituted proceedings in ORG against her former employer , ORG , seeking reinstatement as an employee and recovery of salary arrears . In the proceedings , the applicant was represented by a lawyer .", "On DATE the court allowed the applicant 's claims in full .", "The defendant party appealed against that judgment . The applicant submitted comments on the appeal .", "At a preliminary hearing on DATE ORG issued a ruling scheduling a hearing on the merits of the appeal for CARDINAL DATE .", "According to the ORG , a copy of the ruling of DATE was delivered to the applicant in person on DATE . The ORG submitted a copy of the acknowledgment of receipt completed and signed by a postman and a copy of a report from ORG , indicating that the applicant had received a copy of the ruling in person . In that report the post office mentioned that the register of delivered mail containing the applicant 's signature in that connection had been destroyed and that a copy of it was not available .", "The applicant stated that neither she nor her lawyer had been informed of the hearing on appeal in advance . According to her , the documents submitted by the Government could not prove that she had received a copy of the ruling of DATE , as the acknowledgment of receipt did not bear the post mark of ORG No . CARDINAL of Cherkasy , which normally delivered mail to her place of residence .", "From DATE the applicant underwent treatment at ORG .", "On DATE ORG of Appeal heard the case in the absence of the applicant and her lawyer . It found that the applicant 's dismissal had been lawful , quashed the judgment of the first - instance court and rejected the applicant 's claims in full . According to the judgment of ORG , it could be appealed against in cassation to ORG within DATE .", "According to the applicant , on DATE her lawyer learned that ORG had decided on the case on CARDINAL DATE . On DATE he lodged with ORG a request for a copy of the decision on appeal .", "On CARDINAL DATE the lawyer received a copy of the decision of CARDINAL DATE .", "At the applicant 's request , a copy of that decision was also provided to her by ORG on DATE .", "On DATE the applicant lodged an appeal in cassation with ORG , challenging the factual findings and application of law by ORG . The applicant also requested ORG to renew the time - limit for lodging her appeal in cassation , stating that she had not been informed of the decision of CARDINAL DATE in due time .", "On DATE a judge of ORG dismissed the applicant 's appeal in cassation as lodged out of time , stating , without any further explanation , that the ground on which the applicant had relied in requesting the renewal of the impugned time - limit was not sufficient to justify the requested course of action .", "The relevant extracts from LAW ( Procedural terms ) of LAW of DATE , as worded at the material time , read as follows :", "“ The terms during which procedural acts are to be performed shall be set by the law or by the court . ”", "“ ... Complaints and documents submitted after the expiry of procedural terms shall be left without consideration if the court does not find reasons for extension or renewal of the term . ”", "“ ...", "A term [ expressed ] in DATE shall expire on the corresponding date of DATE of the term ...", "DATE of the term shall run until [ TIME ] ...", "The term shall not be considered to be missed if the complaint or other documents or money required by the court have been submitted to the post office before its expiry . ”", "“ At the request of a party ... the court may renew or extend the terms set by the court .", "The court may renew the term set by the law if it has been missed for reasons found by the court to be justifiable .", "The question concerning renewal of the expired term shall be decided by the court ... to which a document was due to be submitted . [ T]he parties ... shall be summoned to a hearing [ on that question ] though their failure to appear shall not prevent the court from considering [ it ] ...", "A document concerning which the request for renewal of the term has been lodged must be submitted together with the request .", "A court 's ... ruling refusing to renew the missed term may be appealed against ... ”", "The relevant extracts from LAW ( Court judgments ) of LAW of DATE , as worded at the material time , read as follows :", "“ The court shall send to the parties ... who were not actually present at the court hearing ... copies of the judgment or of the rulings by which the proceedings were suspended or discontinued or the claim was left without consideration , within DATE of their pronouncement . ”", "The relevant extracts from LAW ( Appeal procedure ) of the LAW , as worded at the material time , read as follows :", "“ Cases shall be considered by a court of appeal under the rules set for consideration of cases by a court of first instance , with the exceptions envisaged in this LAW .", "... ”", "The relevant extracts from LAW ( Cassation procedure ) of the LAW , as worded at the material time , read as follows :", "“ The court of cassation instance is ORG of GPE . ”", "“ The parties and other persons taking part in the case ... have the right to challenge in cassation judgments and rulings adopted by the first - instance court which have been considered by the court of appeal , as well as rulings and judgments of the court of appeal .", "The grounds for [ an appeal ] in cassation are wrongful application by the court of norms of substantive law or a violation of norms of procedural law . ”", "“ An appeal in cassation ... shall be lodged within DATE of the day of the pronouncement of the ruling or judgment of the appeal court .", "If the time - limit ... has been missed for reasons which the court recognises as justified , the court may , at the request of the person who lodged the appeal ... renew that time - limit for a period not exceeding one year from DATE on which the right to an appeal in cassation arose ... ”", "The relevant extracts from LAW ( Procedural terms ) of Section I ( General provisions ) of LAW , as worded at the material time , read as follows :", "“ CARDINAL . The terms during which procedural acts are to be performed shall be set by the law , and if they have not been set by the law [ the terms shall be ] set by the court . ”", "“ CARDINAL . A procedural term shall start running on DATE after the calendar date of the event [ to which the term is linked ] ... ”", "“ ...", "A term [ expressed ] in DATE shall expire on DATE of the term ...", "DATE of the term shall run until [ midnight ] ...", "The term shall not be considered to be missed if the claim , complaint , other documents or materials , or money have been submitted to the post office or transferred by other means of communication before its expiry . ”", "“ CARDINAL . The court shall renew or extend the term ... at the request of a party ... if it has been missed for justifiable reasons .", "NORP The question concerning renewal or extension of the expired term shall be decided by the court ... to which a document or evidence was due to be submitted . The persons taking part in the proceedings shall be informed of the place and time of consideration of that question . The presence of those persons is not compulsory .", "A document or evidence concerning which the request [ for renewal or extension of the term ] has been lodged may be submitted together with the request ... ”", "The relevant extracts from LAW ORG decisions ) of Section III ( Procedure for consideration of claims ) of the LAW , as worded at the material time , read as follows :", "“ ...", "At a request of a person who took part in the case copies of a court decision shall be given to him within DATE of its pronouncement .", "Copies of a court decision shall be sent , within DATE of its pronouncement , by registered post with acknowledgment of receipt to persons who took part in the case , but who were not present at the court hearing .", "... ”", "The relevant extracts from LAW ( Appeal procedure ) of Section V ( Procedure for review of judicial decisions ) of the LAW , as worded at the material time , read as follows :", "“ CARDINAL . Decisions of the court of appeal shall be issued ... in accordance with the procedure envisaged by LAW .", "Copies of decisions of the court of appeal shall be re - issued by the court of first instance keeping the case - file . ”", "The relevant extracts from LAW procedure ) of Section V ( Procedure for review of judicial decisions ) of the LAW , as worded at the material time , read as follows :", "“ CARDINAL . The court of cassation instance in civil cases is the court which is envisaged by LAW as the court of cassation in such cases . ”", "“ CARDINAL . The parties and other persons taking part in the case ... have the right to challenge in cassation :", "CARDINAL ) NORP judgments of the court of first instance , after they have been reviewed on appeal , judgments and rulings of the appeal court adopted [ in the course of ] the consideration [ of the case ] on appeal ...", "CARDINAL ) NORP rulings of the court of first instance ... after they have been reviewed on appeal and rulings of the appeal court if they obstruct further proceedings in the case .", "The grounds for [ an appeal ] in cassation are wrongful application by the court of norms of substantive law or a violation of norms of procedural law . ”", "“ CARDINAL . An appeal in cassation ... may be lodged within DATE on which the judgment ( ruling ) of the appeal court becomes final .", "NORP If the term ... has been missed for reasons which the court recognised to be justifiable , the court of cassation instance may , at the request of the person who lodged the appeal , renew that term , though for a period not exceeding one year from DATE on which the right to an appeal in cassation arose .", "An appeal in cassation lodged out of time ... shall be returned by the court of cassation to the person who lodged it , if that person does not raise the question of renewal of that term and also if the [ request for ] renewal is refused .", "NORP The question of renewal of the term ... shall be determined by a ruling of the court of cassation instance . ”", "“ CARDINAL . In the course of consideration of the case in cassation , the court shall verify , within the limits of the cassation appeal , the accuracy of the application of norms of substantive or procedural law by the courts of first or appeal instances , [ but it ] shall have no power to establish or to hold proven facts which were not established in the judgment or dismissed by it , [ or ] to decide on the question of reliability ... of [ particular ] evidence or of the weight to be given to certain evidence ...", "NORP The court of cassation instance shall [ examine the question of ] the lawfulness of judicial decisions only within the limits of the claims raised before the court of first instance .", "NORP The court shall not be limited by the arguments of the cassation appeal if , in the course of the consideration of the case , [ it ] discerns the wrongful application of norms of substantive law or a violation of the norms of procedural law , constituting grounds for the compulsory quashing of the decision . ”", "“ CARDINAL . ... [ T]he court of cassation instance has the power to :", "( CARDINAL ) adopt a ruling dismissing the cassation appeal and leaving the [ contested ] decision in force ;", "( CARDINAL ) adopt a ruling fully or partly quashing the decision and referring the case back to the court of first instance or appeal for fresh consideration ;", "( CARDINAL ) adopt a ruling quashing the decision of the court of appeal and leaving in force the judicial decision which was erroneously quashed by the court of appeal ;", "( CARDINAL ) adopt a ruling quashing the judicial decisions and terminating the proceedings in the case or leaving the claim without consideration ;", "( CARDINAL ) quash the judicial decisions and adopt a new judgment or vary the judgment [ on the merits of the case ] , without referring it back for fresh consideration ... ”", "The relevant extracts from ORG ( Final and transitional provisions ) of the LAW , as worded at the material time , read as follows :", "“ CARDINAL . This Code shall enter into force as from DATE ...", "[ The following normative acts ] shall be repealed with the entry into force of this Code :", "The Code of Civil Procedure of ... DATE ...", "Decisions adopted by courts of appeal before the entry into force of this Code may be appealed against in cassation if the term for [ lodging ] an appeal in cassation has not expired under LAW of DATE . ”" ]

[ "6" ]

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[ "The applicant , PERSON , is a NORP national , who was born in DATE and lives in PERSON . She was initially represented before the ORG by Mr PERSON , and subsequently by PERSON , both lawyers practising in Riihimäki . The respondent Government were represented by their Agent , Mr PERSON , Director in ORG .", "The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .", "In DATE the applicant fell down and injured her leg and ankle , sustaining CARDINAL different lasting injuries . She was granted a temporary employment - based disability pension . In DATE she lodged a further application .", "On DATE the insurance company refused her a further pension , giving the following reasons for its decision :", "“ According to LAW ( työntekijäin eläkelaki , lag om pension för arbetstagare ; CARDINAL ) section CARDINAL ( CARDINAL ) an employee is entitled to a disability pension if his or her capacity to work is reduced by CARDINAL for a minimum of DATE as a result of sickness , a defect or an injury . When assessing the decrease of working capacity , attention shall be paid to the employee ’s remaining capacity to pursue gainful employment through available work , which he or she can reasonably be expected to carry out . In addition , attention shall be paid to working experience , age and other comparable circumstances .", "According to the information at hand on your state of health , you underwent rectifying surgery with a view to repositioning a fracture in DATE , after which the ossification has gone well .", "We consider that your state of health does not prevent you from returning to your previous work . For these reasons , you could not be considered incapable of working after your pension ceased . That being the case , your application for a continued disability pension has been rejected . ”", "The applicant appealed to ORG ( eläkelautakunta , pensionsnämnden ) .", "In its observations of CARDINAL DATE to ORG the insurance company stated that it had reviewed the application and found that the applicant was entitled to a part - time employment - based disability pension from DATE , but it requested that the application for a full pension still be rejected as the applicant ’s work capacity had not decreased by CARDINAL . Moreover , the insurance company considered that the applicant did not need any professional rehabilitation . The observations were communicated to the applicant for comment .", "In her written submissions the applicant primarily requested that she be granted a full disability pension as her incapacity to work had been reduced by CARDINAL for DATE . Alternatively , she requested that such a pension be granted temporarily from DATE until DATE . She argued that the insurance company had assessed her capacity for work as a bank clerk , although she worked as a real estate agent , which could not be considered as sedentary work . However , the insurance company had by DATE accepted the fact that she worked as a real estate agent .", "On the strength of CARDINAL medical statements the applicant pointed out that all CARDINAL doctors examining her had considered her incapable for work as a real estate agent . The only doctor who considered her capable for work was the one who , without having ever examined the applicant in person , had reported on her case to the insurance company . If ORG in written proceedings were to consider that she was not entitled to a full disability pension , the applicant requested that ORG hear the doctors ORG and PERSON treating her and the doctor who had reported on her case to the insurance company as witnesses before ORG with a view to examining whether she was incapable to carry out her work as a real estate agent .", "On DATE ORG , without hearing any witnesses , overturned the insurance company ’s decision , finding that the applicant was entitled to a full disability pension in the form of a rehabilitation allowance from DATE until DATE and to a part - time disability pension from DATE . The appeal was rejected as to the other claims . ORG , referring to LAW sections CARDINAL ( CARDINAL , CARDINAL - CARDINAL ) and CARDINAL b ( CARDINAL ) , gave the following reasons for the decision :", "“ PERSON has been granted a rehabilitation allowance with a view to facilitating rehabilitation according to a care and rehabilitation plan . PERSON is prevented from pursuing gainful employment due to incapacity for work . PERSON ’s capacity for work has due to sickness decreased by CARDINAL up until DATE and thereafter by CARDINAL . When assessing the decrease of work capacity , attention has been paid to PERSON ’s remaining capacity for pursuing gainful employment through available work , which she can reasonably be expected to carry out . In addition , attention has been paid to [ her ] training , previous working , age and living conditions and other comparable circumstances . ”", "The applicant appealed to ORG ( vakuutusoikeus , försäkringsdomstolen ) . She primarily requested a full disability pension as her incapacity to work had been reduced by CARDINAL . Alternatively , she requested such a pension temporarily from DATE until DATE .", "The applicant , adducing further written medical statements , again pointed out that the opinion of the CARDINAL doctors treating her differed from the opinion of the doctor who had reported on her case to the insurance company , a person she had not even met . Moreover , she argued that ORG gave no reasons as to why DATE was decisive in its decision , although the doctors treating her had found that she was incapable for work at least until DATE . If ORG in written proceedings were to consider that she was not entitled to a full disability pension , the applicant repeated her request concerning hearing the doctors as witnesses . At this point she also proposed doctor PERSON as a witness . The applicant considered it important that they be heard also as to whether her capacity for work should be assessed differently as to the period prior to CARDINAL DATE and as to the period thereafter .", "In its observations of CARDINAL DATE the insurance company maintained its earlier standpoint . They were communicated to the applicant for comment .", "In its decision of DATE ORG noted that the applicant had submitted CARDINAL new written medical opinions . They had all been issued after ORG decision . It refused the request to hear the doctors as witnesses before ORG as manifestly unnecessary and upheld ORG decision . Referring to LAW sections CARDINAL ( CARDINAL ) and CARDINAL b ( CARDINAL ) and LAW ( laki vakuutusoikeudesta , lag om försäkringsdomstolen ; CARDINAL ) section CARDINAL , ORG gave the following reasons for the decision :", "“ The reasons are given in ORG decision . In addition , ORG notes that according to the submitted medical information the fracture on PERSON ’s left ankle was in DATE noted to have ossified . A faulty alignment remains and a degenerative arthritis has developed in the ankle joint . PERSON has in a majority of the medical opinions been assessed as incapable of working either as a real estate agent or doing other work which places a strain on her legs . The medical opinions differ as to the duration of the incapacity . PERSON has worked as a bank clerk with different tasks for a long period of time . Having been laid off , PERSON took a real estate agent exam , but she did not manage to work as a real estate agent before she was injured . The ORG finds that PERSON can on the basis of the submitted information be considered to be partly able to work with tasks that correspond to her education and professional skills . Her ability to work can accordingly not be considered to have been reduced after DATE in such a way , i.e. by CARDINAL fifths , as to entitle her to a full pension under LAW . ”", "No further appeal was possible .", "Section CARDINAL ( CARDINAL ) of the then LAW ( Suomen hallitusmuoto , ORG ; CARDINAL ) provided that a decision must be reasoned . A new similar provision can be found in section CARDINAL ( CARDINAL ) of LAW ( NORP perustuslaki , PERSON grundlag ; GPE ) .", "At the relevant time chapter CARDINAL , section CARDINAL ( CARDINAL/CARDINAL ) of LAW ( oikeudenkäymiskaari , rättegångsbalken ) provided that a judgment must be reasoned , indicating the facts and the legal argumentation on which it was based and the grounds which have led the court to hold a disputed issue established or unsubstantiated .", "Section CARDINAL of the then LAW ( laki vakuutusoikeudesta , lagen om försäkringsdomstolen ; CARDINAL ) provided that proceedings in ORG were written . When there were exceptional reasons , ORG could however decide to hold an oral hearing . It also provided that the provisions concerning proceedings in general courts were , mutatis mutandis , applied to those before ORG .", "According to the reservation made by GPE in accordance with LAW , as in force at the relevant time , GPE could not guarantee a right to an oral hearing in so far as NORP laws at the time of the events in issue did not provide such a right . This applied , inter alia , to proceedings which were held before ORG as the court of final instance , in accordance with section CARDINAL of LAW ( CARDINAL/CARDINAL ) , and proceedings before ORG in accordance with chapter CARDINAL , section CARDINAL of the Code of Judicial Procedure . GPE withdrew the reservation on DATE . The reservation was applicable to the present case ." ]

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[ "NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr L. Apostol .", "NORP The facts of the case , as submitted by the parties , may be summarised as follows .", "At the time of the events the applicant was employed by the NORP national railway company as a train attendant . On DATE CARDINAL of his colleagues , ORG , was arrested at work on suspicion of involvement in the smuggling of drugs by train to GPE . He had in his possession a bag containing a considerable quantity of marijuana . Later the same day the applicant was arrested . According to the police ’s version of the events , confirmed by ORG , the applicant ’s role was to hide the bag in a train in order to have it smuggled into GPE .", "On DATE of the applicant ’s arrest he was taken to the police station , where he was allegedly subjected to ill - treatment . He did not confess to the offences he was accused of but only said that some time earlier ORG had enquired whether he would be willing to transport drugs to an unspecified direction and that he had replied no . He also stated that ORG had asked where it would be possible to hide drugs in the train . During the questioning he was assisted by a lawyer . A search was carried out at his home and a small quantity of marijuana was found . The police also found equipment for producing dried marijuana and a picture of him next to a large marijuana plant .", "On DATE , after engaging a lawyer , the applicant complained to the prosecutor ’s office that he had been ill - treated at the police station . DATE the applicant underwent a medical examination by a forensic doctor , who found bruises on his face and scratches on his head and shoulder .", "On DATE the prosecutor ’s office dismissed the applicant ’s complaint of ill - treatment and found that his injuries had been caused by his resistance to his arrest . The applicant appealed to the hierarchically superior prosecutor ’s office , which dismissed his appeal on DATE . He did not challenge this decision before the investigating judge .", "During the criminal proceedings against him , the applicant submitted that he had been ill - treated to make him confess and that the small quantity of marijuana at his home had been planted by the police . The co - accused ORG submitted that he had agreed to incriminate the applicant during the investigation phase of the proceedings in exchange for a promise by the police not to prosecute him . He did not complain about any form of pressure or ill - treatment . The prosecution also obtained a medical report which stated that the applicant was not a user of marijuana .", "On DATE ORG found the applicant guilty and sentenced him to seven years’ imprisonment on charges of fabricating narcotic substances for the purpose of sale . At the same time the court acquitted the applicant of the charges of attempted smuggling of narcotic substances . The court based its decision , inter alia , on the statements made by GPE immediately after his arrest and on the findings of the search of the applicant ’s home . The court dismissed the applicant ’s complaint that he had been ill - treated , relying on the prosecutor ’s decision . ORG was also found guilty and received the same sentence . Both the applicant and ORG appealed .", "On DATE ORG upheld the applicant ’s appeal and acquitted him . The court found contradictions between ORG ’s statements in respect of the applicant made at the investigating stage of the proceedings and his testimony during the trial . Moreover , the court found the prosecution ’s version of the facts unreliable , because the applicant ’s passport had no longer been valid at the relevant time and he would not have been able to travel abroad on DATE in question as stated in the indictment . ORG ’s conviction was upheld by ORG . The prosecution and ORG appealed to ORG .", "On DATE ORG upheld the prosecutor ’s appeal , quashed the judgment of ORG and upheld the judgment of the first - instance court . It dismissed the applicant ’s submission to the effect that he had been ill - treated during the investigation phase of the proceedings and observed that his ill - treatment complaint had been dismissed by the prosecutor ’s office . ORG also found that the prosecution had presented sufficient evidence to prove the involvement of the applicant in the fabrication of narcotics with the purpose of further sale .", "According to Articles CARDINAL , CARDINAL and CARDINAL of LAW a complaint about ill - treatment is to be lodged with ORG and the decision of that office is to be challenged before the hierarchically superior ORG . The decision of the latter body can be challenged before an investigating judge . The explanatory judgments of ORG . CARDINAL and No . CARDINAL dated DATE and DATE respectively , confirm that this is the remedy to be used in cases concerning ill - treatment and torture ." ]

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[ "The applicant was born in DATE and lives in PERSON .", "The applicant concluded contracts concerning the lease of business premises inter alia with the following tenants : an entrepreneur PERSON , an entrepreneur PERSON , a company PERSON , and an entrepreneur PERSON", "As these tenants failed to pay the rent , the applicant initiated the following proceedings against them .", "On DATE the applicant lodged the action with the Bratislava ORG ( ORG súd ) . He sought an order for payment of unpaid rent , a contractual penalty for the late payment , and compensation in respect of the costs of the defendant ’s eviction .", "On DATE ORG invited the applicant to pay the court fee , which he did on DATE .", "On DATE , in summary proceedings , ORG issued a payment order ( platobný rozkaz ) in the applicant ’s favour . A copy of the order was mailed to the defendant but was returned by the postal service to ORG on DATE with the mention “ addressee unknown ” .", "On DATE ORG requested information about the defendant ’s whereabouts from ORG in PERSON and ORG in GPE , which responded on CARDINAL and DATE , respectively .", "ORG subsequently re - mailed a copy of the payment order of DATE to the defendant ’s address obtained from the above Registries . On DATE it was returned with the mention “ addressee unknown ” .", "On DATE ORG requested that the payment order of DATE be served on the defendant by the police . The latter informed ORG on DATE that the defendant was not staying at the address officially registered as her permanent residence and that her current whereabouts were unknown .", "On DATE ORG wrote to ORG asking whether the defendant was currently detained on remand or serving a prison sentence . ORG responded in the negative on DATE .", "On DATE ORG quashed the payment order of DATE under LAW and CARDINAL of LAW holding that it had proven impossible to serve a copy of the order on the defendant in person .", "On DATE ORG appointed an ex officio guardian to the defendant as the latter ’s whereabouts were unknown and it was not possible to secure her participation in the proceedings .", "On DATE , following a hearing held on DATE , ORG granted the action . The judgment became final and enforceable in DATE .", "The applicant filed the action on DATE with ORG . He sought an order for payment of a contractual penalty for the late payment of rent .", "On DATE the defendant lodged a counterclaim .", "On DATE ORG granted the action .", "In a letter of DATE ORG informed the applicant of the amendment to LAW which had entered into force on DATE and which provided for a new remedy under the amended LAW in respect of delays in court proceedings . The applicant was requested to inform the ORG whether he used or intended to use this remedy in view of the requirement to exhaust domestic remedies pursuant to LAW .", "NORP In a letter of CARDINAL DATE the Registry informed the applicant about the ORG ’s decision of CARDINAL DATE to declare inadmissible the application in the case of ORG and Others v. GPE ( app . nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , PERSON , DATE , CARDINAL , DATE , ORG CARDINAL-IX ) about the length of court proceedings on the ground that the applicants had failed to raise this complaint before ORG under LAW , as amended from DATE .", "On DATE the ORG gave a supplementary judgment ( doplňujúci rozsudok ) in which it dismissed the defendant ’s counterclaim , a ruling which ORG had omitted to make in the original judgment of DATE .", "The defendant challenged the judgments of DATE and DATE by appeals . On DATE ORG transmitted the casefile to ORG ( PERSON súd ) for a determination of these appeals .", "On DATE ORG overturned the judgment of DATE , dismissed the applicant ’s action , and upheld the judgment of DATE .", "In the meantime , on DATE , the applicant , who was represented by a lawyer , submitted a complaint under the amended LAW to ORG ( Ústavný súd ) . He formally directed the complaint against ORG and alleged that it had violated his right under LAW to a hearing without unjustified delay .", "On DATE ORG declared the complaint inadmissible . It observed that the part of the proceedings before ORG , against which the complaint was formally directed , had ended with its judgments of DATE and DATE and with its carrying out of the related administrative tasks prior to submitting the case to ORG for a decision on the defendant ’s appeals . At the time when the constitutional complaint was lodged , ORG was no longer dealing with the case which was already with ORG . In these circumstances , an examination of the part of the proceedings before ORG could no longer serve to expedite the proceedings . Thus , in line with its established practice , ORG found that it was not called upon to examine the complaint .", "On DATE the applicant lodged the action with ORG . He claimed an amount of money by way of compensation for unpaid rent and a contractual penalty for the late payment of the rent .", "On DATE ORG granted the action . The judgment became final and enforceable in DATE .", "NORP In DATE the applicant , who was represented by a lawyer , lodged a complaint under LAW with ORG . He asserted that ORG had violated his constitutional right to a hearing without unjustified delay .", "On DATE ORG declared the complaint inadmissible . It observed that it had been its established practice to examine constitutional complaints only if the alleged violation occurred , or was still continuing , at the time when the complaint was lodged . Since at the time of the introduction of the applicant ’s complaint in DATE the proceedings at issue were already completed , the complaint could not be entertained .", "NORP The President of the Chamber , however , did not share the majority view and gave a dissenting opinion . He observed that the practice of not examining constitutional complaints of length of proceedings where the proceedings were no longer pending at the time of the introduction of the complaint had developed within the legal framework of the LAW , as applicable prior to DATE . However , as from that date the LAW was amended and the relevant rules were different . According to him , the continuous application of this practice under the new constitutional provisions had no basis in the applicable statutory rules , was contrary to the approach of ORG and unacceptably impaired the complainant ’s right of access to ORG .", "On DATE the applicant brought an action against PERSON in FAC . He claimed an amount of money which was due under a contract of lease of CARDINAL DATE .", "On DATE ORG issued a payment order in the applicant ’s favour .", "On CARDINAL DATE the defendant filed a protest ( odpor ) against the payment order by virtue of which the order was ex lege vacated .", "On DATE ORG stayed the proceedings pending the outcome of proceedings in another action which the applicant had brought on DATE against entrepreneur PERSON on the basis of the above contract of CARDINAL DATE . It was observed that in the latter proceedings the questions of the defendant ’s legal capacity to act and of the validity of the contract of CARDINAL DATE were being determined . The determination of these questions was directly relevant for the present proceedings . Although this decision could have been appealed against within DATE from its service on the appellant , no appeal has been lodged .", "On DATE ORG commenced ex officio a separate set of proceedings aimed at determining the defendant ’s legal capacity to act . These proceedings resulted in a ruling of ORG of DATE that the defendant lacked such capacity .", "In the meantime , in DATE , the applicant , who was represented by a lawyer , had filed a complaint about the length of the proceedings in his action of DATE to ORG .", "On DATE ORG declared the complaint inadmissible on the ground that the applicant had failed to exhaust ordinary remedies by challenging the decision of DATE by an appeal .", "The proceedings in the action of DATE ended with dismissal of the action by a judgment of ORG of DATE . It was observed that the defendant had no legal capacity to act and that , therefore , the contract of CARDINAL DATE was not valid and no claims could be based on it .", "On DATE ORG held a hearing in the action of DATE . The hearing was adjourned until DATE when ORG pronounced its judgment dismissing the action .", "The issue of the costs of the proceedings was finally resolved by a decision of ORG of DATE .", "Article CARDINAL § CARDINAL provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .", "Pursuant to LAW ORG could commence proceedings upon the petition ( podnet ) presented by any individual or a corporation claiming that their rights had been violated .", "On DATE ORG enacted a constitutional law amending LAW . It was published in LAW under no . CARDINAL/CARDINAL .", "Amendment no . CARDINAL/CARDINAL repealed LAW of the LAW with the effect as from DATE and introduced a new LAW with effect as from DATE .", "Pursuant to Article CARDINAL , as in force from DATE , natural and legal persons can complain ( sťažnosť ) about a violation of their fundamental rights and freedoms . Under this provision , ORG has the power , in the event that it finds a violation of LAW , to order the authority concerned to proceed with the case without delay . It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings ( for further details see , for example ORG and Others , cited above ) .", "The implementation of the above constitutional provisions enacted with effect from DATE is set out in more detail in sections CARDINAL of LAW ( Law no . CARDINAL/CARDINAL Coll . ) , as amended . The relevant LAW ( Law no . PERSON . ) was published in the Collection of Laws and entered into force on DATE .", "Pursuant to section CARDINAL ( CARDINAL ) , as a general rule , the scope of ORG examination of a case is limited by the summary of the motion for commencement of the proceedings , as formulated in a standardised and prescribed form by the plaintiff .", "Section CARDINAL ( CARDINAL ) provides that a constitutional complaint can be filed within DATE from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given . As regards the measures and other interferences , the above period commences when the complainant could have become aware of them .", "According to its case - law under the former LAW of LAW , the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner ’s rights under LAW . It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found . In ORG view it was for the authority concerned to provide redress to the person whose rights had been violated ( for further details see , for example , ORG v. GPE DATE . ) , no . CARDINAL/CARDINAL , DATE ) .", "It has been ORG long standing practice to entertain constitutional petitions or , as the case may be , complaints about excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment when such petitions or complaints are lodged ( see , for example , decisions file nos . I. ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL , I. ÚS CARDINAL/CARDINAL , PERSON . ÚS DATE and many others ) ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented by PERSON , a lawyer practicing in GPE region . The respondent Government are represented by PERSON , its Agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant was discharged from ORG on DATE due to his bad state of health . The amount of his pension was determined on DATE .", "In DATE the applicant instituted proceedings in the GPE ORG of Vinnytsia ( the “ ORG ” ) against ORG , seeking recalculation of his pension in view of the changes introduced to the legislation after his discharge .", "On DATE the ORG , in the absence of the respondent , dismissed the applicant ’s claims as being unsubstantiated . In particular , it found that the applicant was not entitled to such an increase and that the amended legislation did not apply retroactively to the determination of the amount of his pension .", "On DATE the ORG informed the President of ORG that it no longer intended to participate in civil proceedings concerning recalculation of pensions . It asked the President of that court to consider these cases in the absence of the ORG ’s representative . It also filed written objections .", "On DATE ORG upheld the judgment of CARDINAL DATE .", "The applicant lodged an appeal in cassation with ORG .", "On DATE ORG , acting under paragraph CARDINAL of Chapter CARDINAL of LAW , transmitted the case - file to ORG for examination . It adopted no formal procedural decision on the transfer , or lack of , jurisdiction to hear cassation appeals in administrative cases .", "On DATE ORG rejected the applicant ’s appeal in cassation as unsubstantiated . In particular , it upheld the reasoning of ORG and ORG . ORG ruled that the previous court decisions were correct as they were based on ORG no . CARDINAL of DATE .", "On DATE , following communication of the case to the respondent Government , ORG gave a formal ruling by which it referred the applicant ’s cassation appeal lodged with ORG to ORG .", "The applicant lodged no appeal in cassation with ORG against this decision .", "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 ... ”", "In accordance with LAW the court of cassation in administrative cases is ORG of GPE .", "Under LAW the parties to administrative proceedings may lodge cassation appeals with ORG against the judgments or rulings of the first instance court and the court of appeal . The grounds for appeal in cassation are an erroneous application of the procedural or substantive law .", "In accordance with LAW , ORG can quash or amend judgments and rulings of the first instance courts and the courts of appeal or adopt a new judgment upon appeal in cassation .", "In accordance with LAW , the ORG reviews the decisions of ORG in the course of extraordinary review proceedings ( в порядку виключного провадження ) . In accordance with LAW such a review is a type of cassation review of the case . Under LAW , one of the CARDINAL grounds for review is the lack of coherence in judicial practice and the difference in application of the same legal provision by different higher courts that examine appeals in cassation ( ORG and ORG ) . ORG may also re - examine the case if there was a finding of an international judicial body that a judicial decision in an administrative case infringed GPE ’s international obligations .", "In accordance with paragraph CARDINAL of Chapter VII of LAW , appeals in cassation which concern decisions of the courts of general jurisdiction ( civil and commercial proceedings ) given in administrative cases and which have not been examined by ORG by DATE shall be transferred for examination to ORG .", "LAW states that the pensions shall be calculated on the basis of the salary paid to them , military rank , post occupied , time - in - service , etc . and other conditions determined by ORG .", "On DATE the PERSON was amended and the amounts of pensions were increased by PERCENT .", "Paragraph CARDINAL of the Resolution of ORG stated that , in accordance with LAW no . CARDINAL-ХІІ and paragraph CARDINAL of Resolution no . CARDINAL of the Cabinet of Ministers of GPE of DATE , recalculation of previously determined amounts of pensions should be effected with due regard to the base salary . Other relevant factors should be taken into account ( payment for rank , position , time - in - service , conditions of military service , secrecy , etc . ) .", "More specifically , ORG drew the ORG attention to the fact that the pension legislation which was in force before DATE did not provide for recalculation of pension on the basis of new changes introduced into legislation after the persons concerned had been discharged from the military . In particular , ORG considered that the PERSON no . TIME , which entered into force on DATE , did not have retroactive effect and therefore claims for recalculation of pension based on the changes to the base military salary or additional payments that were introduced after a person ’s discharge from the military ( i.e. before DATE ) should not be allowed . Persons discharged from the military , who were given higher ranks after their retirement or discharge , had no right to recalculation of previously determined pension amounts .", "In paragraph CARDINAL of its ORG , ORG informed the courts that a new law no . CARDINAL governing the issues of recalculation of pensions for former military servicemen would become effective as of DATE . Under the new law , all military pensions should be subjected to recalculation in the event of any changes introduced to constituent parts of the payments for acting military servicemen ( payment for rank , time - in - service , post occupied , etc . ) . Recalculation of pensions shall be effected from the date of recognition of this right and within the time - limits established by LAW no . CARDINAL-ХІІ. The ORG also stated that under the new law military pensions should be recalculated , but without retroactive effect .", "In accordance with paragraph CARDINAL of the ORG , recalculation of pensions under LAW no . CARDINAL-ХІІ should be effected from DATE following DATE in which recalculation of pension was authorised by law . ORG informed the courts that where , in accordance with the legislative changes , a pensioner had obtained a right to an increase in his the pension , the difference should be paid for a period not exceeding DATE .", "ORG also recommended that in examining the instant category of cases the courts should take into account the categories of military servicemen discharged from the military due to its reform ( PERSON of DATE no . CARDINAL that entered into force on DATE ) . The law covered all military servicemen discharged from the military as of DATE ( LAW no . CARDINAL-IV ) . In accordance with paragraph CARDINAL of LAW no . CARDINAL-IV , former military servicemen , who had attained the age of DATE and had served in the military for DATE could receive an increase in the amount of pension of PERCENT of the base salary . The amounts of pensions were to be determined in accordance with the PERSON no . CARDINAL-ХІІ.", "In accordance with paragraph CARDINAL of the ORG , the courts in examining military pension cases had to take into account that LAW CARDINAL of the PERSON no . CARDINAL-ХІІ the amounts of pensions already determined for their recipients under the law were to be paid for DATE of DATE before the pensioner requested recalculation . Also , the sums of pension not received by the pensioner due to the fault of the body determining the amount of pension were to be paid for DATE without any time limitation .", "Under paragraph CARDINAL of ORG , pensioners had the right to receive compensation for pecuniary and non - pecuniary damage , in accordance with the procedure established by law ( LAW of the PERSON no . CARDINAL “ On ORG and Members of their Families ” of DATE ) .", "The Government provided the following resolution of the Administrative division of ORG :", "- Resolution of DATE ( case no . CARDINAL - CARDINAL во CARDINAL ) ;", "- Resolution of DATE ( case no . CARDINAL - CARDINAL сво CARDINAL ) ;", "- Resolution of CARDINAL DATE ( case no . CARDINAL - CARDINAL во CARDINAL ) ;", "- Resolution of DATE ( case no . PERCENT во CARDINAL ) .", "The applicant referred to the following judgments given by the GPE ORG of Vinnytsia , in which the PERSON requests for recalculation of their pensions were allowed :", "- judgment of DATE ( case no . CARDINAL - CARDINAL/CARDINAL/CARDINALp . ) ;", "- judgment of DATE in the case of B.V.V. against ORG ;", "- judgment of DATE ( case no . CARDINAL - CARDINAL/CARDINALp . ) ;", "- judgment of DATE ( case no . DATE . ) ;", "- judgment of DATE ( case no . CARDINAL - CARDINAL/CARDINALp . ) ;", "- judgment of CARDINAL DATE ( case no . CARDINAL - CARDINAL/CARDINALp . ) .", "The Government referred to the following judgments given by the domestic courts , in which the claims for recalculation of pensions were rejected :", "- rulings and judgments of the L’viv ORG of CARDINAL DATE ( CARDINAL rulings ) and DATE ( CARDINAL judgments ) DATE ." ]

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[ "The applicant [ Mr PERSON ] is a NORP national , who was born in DATE and lives in GPE ( departement of GPE ) . He was represented before the ORG by PERSON , of ORG . The respondent Government were represented by their agent , Mr PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant acquired parcels of land subject to a prohibition on building in the administrative district ( commune ) of PERSON on FAC ( Charente - Maritime ) . The applicant used the land for caravanning .", "By a ministerial order issued on DATE , the whole of FAC was included in the list of monuments and places of interest whose conservation or preservation was in the public interest from the artistic , historic , scientific , legendary or scenic point of view , in accordance with section CARDINAL of the Law of CARDINAL DATE on the conservation of natural monuments and places of interest , as amended .", "The order was published in CARDINAL newspapers distributed in the administrative districts concerned : FAC ( on DATE ) and the DATE Sud - Ouest ( on DATE ) . It was republished in DATE edition of the former and the CARDINAL DATE edition of the latter . The order was also displayed in GPE - Flotte - en - Ré town hall on DATE and published in the FAC des actes administratifs du département de la FAC ( ORG of the département of GPE ) ( no . CARDINAL of DATE ) .", "CARDINAL of the consequences of listing was to render PERSON LAW applicable to the entire island . That provision made it illegal to camp or to park a caravan other than on authorised campsites or to create campsites on listed places of interest unless an exemption had been granted under sub - paragraph CARDINAL of the Article .", "On DATE the rural police officer of ORG Ré reported the applicant for illegally parking caravans .", "The applicant was summoned to answer the charges in ORG . He argued that the proceedings were unlawful , as he had not received individual notification of the listing order and the interference with his right of property was disproportionate . In a judgment of DATE , ORG rejected the applicant 's submission that the proceedings were unlawful , holding that there was no requirement for individual notification under section CARDINAL of the Law of CARDINAL DATE and ORG and CARDINAL of the decree of CARDINAL DATE . It further found that the restriction placed on the applicant 's use of the land arose from a public easement that had been created in the general interest and which accordingly did not contravene LAW No . CARDINAL . It found the applicant guilty of parking CARDINAL caravans on his land , contrary to Articles LCARDINAL - CARDINAL , LCARDINAL - CARDINAL , LCARDINAL - CARDINAL , LCARDINAL - CARDINAL , ORG and ORG of LAW . The applicant was ordered to pay a fine of MONEY ( ORG ) and to reinstate the land within DATE , an additional penalty of ORG CARDINAL being imposed for DATE delay . ORG ordered publication of the judgment .", "The applicant appealed against that decision and the public prosecutor lodged a cross appeal . The applicant argued , firstly , that his prosecution was unlawful , as he had not received individual notification of the decision to designate the land , even though such notification was necessary before criminal proceedings could be brought according to an explanatory circular that had been issued on DATE . He added that there was no evidence in the case file that the notification procedure set out in the law of DATE had been followed . As to the merits , he asked ORG to rule on the lawfulness of the administrative decision . He further relied on LAW No . CARDINAL , arguing that he could not have committed an offence , as he had not been awarded proper compensation for the adverse effect the public easement had had on his vested rights and the situation prior to designation . He complained , lastly , that the failure to give him individual notification of the listing order had deprived him of effective access to a court .", "In a judgment of CARDINAL DATE , ORG declared the applicant 's preliminary objection that the listing order should have been declared unlawful inadmissible , as it had been made for the first time on appeal whereas it should have been made prior to any defence on the merits . It noted that the applicant had not denied being aware of the listing order 's existence or seriously contended that the notification procedure had not been followed , since he could not properly rely on a non - legally binding circular in the face of the unequivocal wording of LAW of CARDINAL DATE . Accordingly , it dismissed his plea that he had not been notified of the order and held that the authorities had been entitled to proceed by general announcement . ORG observed that creating a public easement in the public interest was not contrary to the LAW , but could entail a right to compensation which it was not for the criminal courts to quantify ; the applicant had not been deprived of effective access to a court , since the applicant had been given proper notice of the order and could either have asked the authorities to reconsider their decision or appealed . It therefore upheld the impugned judgment in its entirety .", "The applicant appealed on points of law against ORG judgment . He complained among other matters that he should have been given individual notification of the listing order , as , although LAW of CARDINAL DATE allowed notice to be given by general announcement rather than individually if CARDINAL landowners were affected by the listing of a place of interest , it also required listing orders that contained special directions to alter the state or use of the land to be notified to the property owner and accompanied by a formal notice . The applicant alleged that he had installed the caravans on the land before the designation decision DATE which made it illegal to park caravans on LOC was issued and had not received any individual notification or formal notice . In his submission , therefore , by wrongly relying in its decision on the fact that he had not denied being personally aware of the designation order , ORG had violated LAW .", "ORG ) dismissed the applicant 's appeal on points of law in a judgment of DATE , inter alia , on the following grounds :", "“ In finding the accused guilty of the offence , ORG found that the order of DATE did not constitute a designation decision within the meaning of the legislation introduced by the aforementioned PERSON , and in particular section CARDINAL thereof , but merely an order under section CARDINAL of that PERSON for the land to be included in the list of sites of natural beauty in the département . Accordingly , since – as the courts below found – the order affected CARDINAL landowners , the authorities were entitled to use DATE and it is common ground that they did use DATE the general announcement procedure instead of the individual notification procedure prescribed by that section .", "ORG added that , since the Law of CARDINAL DATE and its subsequent implementing legislation did not require a formal notice to be given , such notice only being required when a designation decision was contested by the landowners ... , ' the authorities were entitled to give notice of the order of DATE by general publication ' .", "... in so holding , ORG justified its decision . ”", "Section CARDINAL of the PERSON provided :", "“ In each département there shall be drawn up a list of the natural monuments and places of interest whose conservation or preservation is in the public interest from the artistic , historic , scientific , legendary or scenic point of view . ...", "Listing shall be effected by means of an order made by the Minister for ORG . The decree issued after consultation of the PERSON d'Etat shall lay down the procedure for notifying the listing to the property owners or for publishing it . Publication may replace notification only in cases in which the latter is made impossible by the large number of owners of CARDINAL and the same place of interest or natural monument , or if it is impossible for the authorities to ascertain the identity or address of the owner . On the land within the boundaries laid down in the order , listing shall entail an obligation on those affected not to undertake any works other than those relating to day - to - DATE agricultural use as regards rural land and to normal upkeep as regards buildings without having given the authorities DATE notice of their intention . ”", "The relevant provisions of the decree provided :", "“ Listing orders shall be notified by the prefect to the owners of natural monuments or places of interest .", "However , when the number of owners affected by the listing of one and the same place of interest or natural monument is greater than a CARDINAL , the procedure of individual notification may be replaced by a general public announcement as provided for in DATE .", "Recourse shall likewise be had to public announcements where the authorities are unable to ascertain the identity or address of the owners . ”", "“ The public announcements provided for in LAW ... shall be made at the instance of the prefect , who shall have the listing order published in CARDINAL newspapers , CARDINAL of which shall be a DATE newspaper that is distributed in the administrative districts concerned . This notice must be republished at the latest on DATE following the initial publication .", "The listing order shall further be published in the relevant administrative districts , for a period of not DATE , by being displayed at the town hall and in all other places customarily used for posting up public notices ... ”", "“ The designation decision shall be published in ORG . ”", "“ Where a designation decision contains special directions that would alter the state or change the use of a site , it must be notified to the property owner .", "This notification shall be accompanied by a formal notice to the effect that the site must be brought into conformity with the special directions in accordance with the provisions of section CARDINAL ( paragraph CARDINAL ) of the Law of CARDINAL DATE . ”", "The relevant provisions of the circular read as follows :", "“ Another innovation introduced by the PERSON of DATE and the decree of CARDINAL DATE is general publication as a method of informing property owners that a place of interest has been listed .", "There are now CARDINAL possible procedures :", "– either individual notification , in accordance with the arrangements currently in force in all cases ; or", "– general publication ( public display and publication in CARDINAL newspapers ) , to which the prefect resorts when the number of owners concerned is greater than DATE as with places of interest covering a larger area – or when CARDINAL or more property owners have not been identified .", "This general publication will simplify the formalities that were necessary hitherto for the listing of a place of interest to have its full effect , and this will be particularly appreciable in the case of very large areas . It will have the advantage of ensuring that the public are well informed before the listing order is implemented ... ”", "The relevant provisions of the Code provide :", "“ There shall be no right to compensation for easements created pursuant to this Code for public access , public health , aesthetic or other purposes and concerning matters such as the use of the land , the height of buildings , the proportion of developed and undeveloped land in each property , prohibitions on building in certain areas and along certain roads and the distribution of buildings between different areas .", "However , compensation shall be payable if such easements result in a violation of vested rights or a change in the previous condition of the land that causes direct , pecuniary and indisputable damage . In the absence of an amicable agreement , such compensation shall be assessed by the administrative court , which shall take into account the increase in value of a building produced by the implementation of a landuse plan that has been made public , or of an approved local town - development plan or equivalent document . ”", "“ It shall be illegal to camp or to park a caravan other than on an authorised campsite , or to create a camp or caravan site :", "( CARDINAL ) on the seashore ;", "( CARDINAL ) NORP on designated or listed places of interest , within the areas defined in paragraph CARDINAL of section CARDINAL of FAC of DATE , in the area surrounding a historical monument that is designated , listed or in the process of being designated , in areas in which architectural or urban heritage is protected and in the protected areas established by LAW on the protection of natural monuments and places of interest of CARDINAL DATE . With the exception of places of interest that have been designated or are in the process of being designated , the competent authority may grant exemption from the prohibition , after obtaining the opinion of the département 's heritage protection officer and , if applicable , its ORG . As regards designated places of interest , exemptions may be granted by the minister responsible for places of interest or , in the case of natural sites , by the minister responsible for the conservation of nature and the environment , after obtaining the opinion of the département 's ORG .", "... ”" ]

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[ "The applicant was born in DATE .", "In DATE the applicant moved from GPE to GPE where his sister lived . In DATE ORG ( ORG служба г. ORG ) granted the applicant ’s family the right to use CARDINAL rooms in a CARDINAL - room communal flat .", "On DATE ORG ( “ GPE ” ) newspaper ran an article by Mr GPE under the headline “ A GPE from GPE ? Claim your housing ! ” ( “ Курд из Новосибирска ? PERSON жилплощадь ! ” ) . The article alleged that the applicant and his wife , both of NORP origin , obtained the housing unlawfully , for a bribe . It was also said that they tortured and humiliated their neighbour ( who lived in the third room of the flat ) in order to “ lay their hands on ” the entire flat . The article implied that “ compatriots of FAC were given preference to the detriment of ethnic NORP .", "The applicant complained to a prosecutor ’s office , and the ORG prosecutor ’s office of GPE opened a criminal case for libel . A preliminary investigation established that Mr GPE based his conclusions on statements by the applicant ’s neighbour who had been diagnosed with a mental disorder of paranoid nature .", "On DATE ( on DATE , according to ORG ) the applicant lodged a civil action for defamation against the “ GPE ” newspaper and Mr GPE . He claimed both publication of a refutation and compensation for non - pecuniary damage in the amount to be determined by the court .", "The first hearing was fixed for DATE . DATE and DATE CARDINAL hearings were adjourned . According to the Government , the adjournments took place because the applicant failed to appear . According to the applicant , he came to every hearing , but the defendant never showed up .", "On DATE and CARDINAL DATE the applicant moved to hear the case in his absence , explaining that it was difficult for him to come to every hearing because of his limited mobility . He also filed several complaints with ORG of GPE about unreasonable delays in the examination of his claim , requesting the court to expedite the proceedings .", "On DATE the GPE ORG of GPE inquired in writing whether the applicant would agree to the substitution of the “ GPE ” newspaper , the original defendant , by the publishing house “ GPE ” , the original defendant ’s legal successor . On DATE the applicant responded in the affirmative . On DATE the court sent him again the same inquiry .", "The hearing in the defamation action before the GPE ORG of GPE finally took place on DATE , and the court rendered a judgment in the applicant ’s favour . The defendant was ordered to pay MONEY ( “ RUR ” ) for non - pecuniary damage and publish a refutation .", "NORP In DATE the applicant complained to ORG about the district court ’s failure to make the text of the judgment available to him . On an unspecified date in DATE the applicant received the judgment .", "On DATE the judgment was enforced in the part concerning the pecuniary award and the enforcement proceedings were closed . The applicant submits that the judgment has remained unenforced in the part concerning publication of a refutation .", "NORP In DATE the applicant ’s neighbour moved out and the applicant applied to ORG for permission to use the third room in the flat . His application was refused . The applicant challenged the refusal in court .", "On DATE ORG dismissed the applicant ’s claim . On the applicant ’s appeal , the judgment was upheld on DATE by GPE .", "The applicant ’s application for supervisory review was refused by the Presidium of GPE .", "Article CARDINAL of ORG of DATE ( in force at the material time ) provided that civil cases were to be prepared for a hearing DATE after the action had been submitted to the court . In exceptional cases , this period could be extended for DATE . The civil cases were to be examined DATE after the preparation for the hearing had been completed ." ]

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[ "The applicant , ORG , is a citizen of GPE who was born in DATE and lives in the GPE . She was represented before the ORG by Ms J.A. Younge , a lawyer practising in GPE .", "In DATE , the applicant married her cousin PERSON The couple remained childless . In DATE , the applicant and her husband fled from GPE to the GPE where they applied for asylum on the basis of the husband ’s alleged problems with the ORG . On DATE , an immigration official held a first interview ( eerste gehoor ) with the applicant in connection with her asylum request . A further interview ( nader gehoor ) was held on DATE . The applicant , who had been assisted by an interpreter during both interviews , availed herself on DATE and DATE of the opportunity to submit written comments on the records that had been drawn up of these interviews . As from an unspecified date , the applicant ’s husband started to receive medical treatment for a posttraumatic stress disorder .", "In DATE , the applicant gave birth to a child , whose physical features ( complexion and hair ) were alleged to be markedly different to those of the applicant and her husband .", "On DATE , in view of the changed situation in GPE , an additional interview ( aanvullend gehoor ) was held with the applicant who was assisted by an interpreter . On DATE , the applicant submitted written comments on the record drawn up of this additional interview .", "On DATE , the Minister for ORG ( Minister PERSON ) notified the applicant of her intention ( voornemen ) to reject the applicant ’s asylum request . The applicant submitted her views ( zienswijze ) on this intention on DATE .", "On DATE , the Minister for ORG rejected the asylum request filed by the applicant and her husband . On DATE , the applicant and her husband filed an appeal against this decision with ORG ( arrondissementsrechtbank ) of GPE .", "On DATE , a staff member of a GPE refugee aid organisation informed the applicant ’s lawyer by way of a written memorandum that , in a recent conversation with this staff member , the applicant had said that her husband was not the father of her child and that he did not know this . Fearing to be sent back to GPE where she risked to be killed if this became known – which was probable – , she had now decided to confess to it . She had not dared to tell her husband , but because the situation had become untenable she was planning to do so on DATE when she and her husband would have a meeting with a mental health care counsellor . This document does not contain any mention of the child ’s physical features .", "By letter of DATE , the applicant ’s lawyer transmitted the written memorandum of CARDINAL DATE to ORG , submitting that also for this reason the applicant risked exposure to treatment contrary to LAW if expelled to GPE . The lawyer ’s submissions were transmitted to the Minister who filed written comments in reply with ORG on DATE .", "On DATE , a hearing on the appeals filed by the applicant and her husband was held before ORG . This hearing was attended by the applicant and her husband , who were assisted by an interpreter .", "On DATE , in the presence and under the guidance of a mental health counsellor , the applicant informed her husband of the origins of the child . According to the applicant , her husband was obviously very upset but he refused to give any reaction . During DATE , he was under heavy medication ( sleeping medication and tranquillizers ) , and did not speak with or touch the applicant . He further completely neglected the child since DATE whereas before that date he had given the impression of simply not knowing what to do with a child in general in that he did not touch or mind the child very much .", "On DATE , ORG rejected the appeals filed by the applicant and her husband . As regards the applicant ’s submissions in relation to her child , ORG held that these personal circumstances which had only been raised for the first time in the proceedings on appeal could not be regarded as new facts and circumstances having arisen after the taking of the impugned decision and which should be taken into account under section CARDINAL § CARDINAL of LAW ( Vreemdelingenwet DATE ) , in that the applicant should have raised these circumstances at an earlier stage in the proceedings . It further held that it had not been argued and that it had not appeared that there were special circumstances on the basis of which this could not have been done earlier .", "On DATE , the applicant and her husband filed an appeal with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) . In these appeal proceedings , the applicant submitted that the child had been born after a fleeting sexual encounter she had had in the asylum seekers reception centre where she and her husband had stayed shortly after their arrival in the GPE , and that , as the child grew older , gradually more and more clearly different racial characteristics became noticeable , as a result of which the child obviously bore no resemblance to either the applicant or her husband .", "The appeal filed by the applicant and her husband was dismissed by ORG on DATE . It upheld ORG judgment . As regards the applicant ’s submissions relating to her child , it held :", "“ CARDINAL.CARDINAL.CARDINAL . Pursuant to section CARDINAL § CARDINAL of LAW , the court shall , in the determination of the appeal , take into account facts and circumstances having arisen after the taking of the impugned decision .", "ORG . As ORG has held previously ( ruling of DATE in case no . CARDINAL/CARDINAL ; JV CARDINAL/CARDINAL ) , this provision is aimed at preventing that repeated requests [ for a residence title ] must be filed in case of relevant circumstances having emerged after the [ taking of the ] impugned decision but before the ruling [ on appeal ] and entails that the determination of the question whether there are such facts and circumstances must be made on the basis as the same criteria as under section CARDINAL § CARDINAL of LAW ( PERSON ) . According to the case - law , under newly appeared facts or altered circumstances – in so far as relevant for DATE must be understood facts or circumstances having taken place after the taking of the earlier decision or which could not and , noting section QUANTITY of LAW DATE , therefore should not be submitted before the taking of that decision .", "CARDINAL.CARDINAL.CARDINAL . As also held by the ORG in that ruling , the alien who asks for protection must – even where it concerns a forced return to a country where there allegedly exists a risk of treatment in breach of LAW as a rule comply with procedural requirements under domestic law , including LAW CARDINAL of LAW , which [ requirements ] enable the national authorities to determine requests for a residence permit in an orderly manner and only under special , to the individual case relating facts and circumstances , may a necessity arise not to hold a failure to respect these rules against the person concerned .", "ORG has not taken into account under section CARDINAL § CARDINAL of LAW CARDINAL the personal circumstances only submitted on appeal by the appellant , because it found that the appellant could and therefore should have submitted those circumstances earlier and that no special circumstances had appeared justifying that this not be held against her .", "By letter , received at ORG on DATE , the appellant has submitted a record of DATE on a conversation between a collaborator of ORG ( Vluchtelingenwerk ) PERSON and the appellant concerning personal circumstances in relation to her child born on ... DATE .", "ORG . The applicant has thus after the taking of the decision of DATE submitted for the first time circumstances in relation to her child that had taken place before that decision was taken . It has not been argued that the thus submitted circumstances were not known to her at the time when this decision was taken . ORG has correctly considered that the appellant , also in view of the provisions of section CARDINAL § CARDINAL of LAW , should have raised those circumstances earlier in the proceedings . ORG has further correctly found no reasons in what has been put before it in this respect for finding that this could nevertheless not be asked from the appellant .", "ORG has correctly found that the circumstances submitted by the appellant in relation to her child were not facts or circumstances within the meaning of section CARDINAL § CARDINAL of LAW .", "Neither can the applicant ’s submissions to ORG be regarded as special facts and circumstances relating to the individual case , on which basis ORG ought not have held this national procedural rule against the appellant . ”", "No further appeal lay against this ruling . To date , the applicant ’s husband has not taken any initiative from which it could be concluded that he is considering a separation , divorce or to challenge his paternity of the child ." ]

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[ "On DATE , the applicant was arrested for drunkenness and taken to FAC . He was held overnight in a cell shared by another detainee , PERSON . DATE , PERSON was found dead with severe injuries . The applicant was charged with his murder . The applicant alleged that the police had framed him for the murder in order to cover up their own wrongdoing . In DATE , the applicant was found guilty of the murder of PERSON and was sentenced to life imprisonment . In DATE , his conviction was overturned on appeal . At a first retrial , CARDINAL of the police officers , a key prosecution witness , failed to appear . He was subsequently declared mentally unstable and was withdrawn from the proceedings . Following a second retrial , the applicant was convicted in DATE of manslaughter and sentenced to DATE imprisonment . The case was controversial in GPE on account of missing and conflicting police evidence which led DATE including a number of Members of ORG – to question the safety of the applicant 's conviction .", "In DATE , the applicant was released from prison . Following his release , he became active in campaigning against miscarriages of justice generally . He subsequently started a removal business called ORG , undertaking small moves and van hire in GPE . Although his business did well at the beginning , he subsequently began to experience interference with his business telephone calls . He alleged that local calls to his telephone were not being put through to him and that he was receiving a number of time - wasting hoax calls . The applicant suspected that this was because his mail , telephone and email communications were being intercepted . As a result of the interference , the applicant 's business began to suffer .", "The applicant believed that the interception of his communications was directly linked to his high profile case and his subsequent involvement in campaigning against miscarriages of justice . He alleged that the police and security services were continually and unlawfully renewing an interception warrant DATE originally authorised for the criminal proceedings against him – in order to intimidate him and undermine his business activities .", "On DATE the applicant made subject access requests to MICARDINAL and ORG ( GPE intelligence agencies responsible for national security ) under LAW DATE ( “ DPA ” – see paragraphs CARDINAL to CARDINAL below ) . The object of the requests was to discover whether information about him was being processed by the agencies and to obtain access to the content of the information . Both requests were refused on the basis that the information requested was exempt from the disclosure requirements of the DATE Act on the grounds of national security under certificates issued by the Secretary of ORG on DATE ( MICARDINAL ) and DATE ( ORG ) .", "On DATE the applicant lodged CARDINAL complaints with ORG ( “ IPT ” ) . First , the applicant complained under sections CARDINAL(CARDINAL)(b ) and CARDINAL ) of ORG ( “ RIPA ” – see paragraphs CARDINAL below ) that his communications were being intercepted in “ challengeable circumstances ” , within the meaning of section CARDINAL(CARDINAL ) RIPA ( i.e. under an interception warrant or in circumstances in which there ought to have been an interception warrant or where consideration ought to have been given to obtaining an interception warrant ) . Second , the applicant complained under sections DATE ) and CARDINAL ) of LAW DATE ( “ HRA ” ) and section CARDINAL(CARDINAL)(a ) RIPA that there was an unlawful interference with his rights under LAW .", "The applicant 's Grounds of Claim and Complaint outlined the grounds for bringing the proceedings as follows :", "“ CARDINAL(a ) That the authorities ' conduct was , and is , incompatible with his rights under LAW and a violation of equivalent rights of his at common law . Such conduct is unlawful as a result of ORG s. DATE ) and forms the basis for a complaint under RIPA s. DATE .", "( b ) To the extent any such conduct purports to have the authority of a warrant issued or renewed under ORG Part I or the corresponding predecessor provisions of ORG DATE ( “ IOCA ” ) , the issue and renewal of that warrant , as well as the conduct itself , has at all times lacked the necessary justification , whether under the express provisions of ORG I ( or IOCA ) , PERSON ) of the LAW , or the general law .", "( c ) Moreover the authorities ' conduct was and is unlawful because in breach of the requirements of LAW DATE ( “ DPA ” ) . Conduct in breach of those requirements takes place in challengeable circumstances under RIPA s. CARDINAL(CARDINAL ) and ( CARDINAL ) and is also incompatible with the Complainant 's rights under LAW .", "In addition , the Complainant relies in these proceedings on his right to a fair hearing under Article CARDINAL ) of the LAW . In light of that right , the Complainant makes certain submissions about the way in which these proceedings ought to be conducted ... ”", "The applicant requested specific directions regarding the conduct of the proceedings in order to ensure the protection of his Convention rights under LAW . In particular , he requested that his arguments and evidence be presented at an oral hearing ; that all hearings be conducted in public ; that there be mutual disclosure and inspection between the parties of all witness statements and evidence upon which parties sought to rely and exchange of skeleton arguments in relation to planned legal submissions ; that evidence of each party be heard in the presence of the other party or their legal representatives , with oral evidence being open to cross - examination by the other party ; that any opinion received from a Commissioner be disclosed to the parties , who would have the opportunity to make oral representations in light of it ; that each party be able to apply for a derogation from any of the above in relation to a particular piece of evidence ; and that , following its final determination , the ORG state its findings and give reasons for its conclusions on each relevant issue . He argued that to the extent that the ORG 's rules of procedure ( see paragraphs DATE below ) prevented the directions sought , they were incompatible with his right to a fair hearing .", "The Grounds of Claim and Complaint referred to the applicant 's belief that his communications were being intercepted and that any warrant in place was being continually renewed .", "Paragraph CARDINAL of the Grounds of Claim and Complaint noted :", "“ So far as the proceedings are brought in reliance on ORG s. CARDINAL(CARDINAL)(a ) or ( b ) , the Complainant submits that :", "( a ) The interception , and retention or other processing of intercept product , by any of the Respondents amounts to an interference with the Complainant 's right to respect for private life and correspondence protected by LAW ;", "( b ) The interception and processing have at no time been in accordance with the law as required by LAW ;", "( c ) The interception and its purported authorisation ( if any ) , and processing , have at no time been justified as necessary in a NORP society as required by Article CARDINAL(CARDINAL ) . ”", "Paragraph CARDINAL of FAC expanded on the applicant 's submissions :", "“ In particular , the Complainant submits that :", "( a ) the proper inference from the circumstances described by the Complainant , amplified by the refusal of the [ authorities ] to deny the activities alleged , is that it is established on the balance of probabilities that the interception and processing took place . At minimum there is a reasonable likelihood that interception and processing ... has taken place and continues to take place ( PERSON and ORG v. GPE , CARDINAL , EComHR Report CARDINAL.CARDINAL.CARDINAL , paras . CARDINAL - CARDINAL ) .", "( b ) The interception is not in accordance with the law so far as involving a breach of any requirement of the ORG ( including ORG ) ...", "( c ) The complainant poses no risk to national security nor in his case could any other ground for authorising interception of his communications reasonably be considered to exist . It can not be said that interception of his communications has at any material time been a necessary or proportionate interference ... with his rights under LAW ) . ”", "As to remedies , LOC noted the following :", "“ CARDINAL . If the ORG finds that the Complainant succeeds on the claim or complaint , it is asked to make ... :", "( a ) a final order prohibiting each Respondent from intercepting any communication by the Complainant ... or retaining or otherwise processing the product of any such interception , except on the grounds , and subject to the procedure , provided for by ORG I ;", "( b ) an order ... quashing or cancelling any warrant or authorisation relating to any such interception ;", "( c ) an order requiring the destruction of any product of such interception ...", "( d ) an award of compensation ... and/or damages ... for the loss and damage sustained by the Complainant in consequence of the matters complained of ( including economic loss resulting from interference with his business communications ) . ”", "On DATE , the ORG , presided over by Lord Justice Mummery , issued a joint Ruling on Preliminary Issues of Law in the applicant 's case together with a case involving a complaint by ORG and others in which a similar challenge to the ORG 's Rules was made ( see paragraphs DATE below ) .", "On DATE , the ORG , again presided over by Lord Justice Mummery , issued a second ruling on preliminary issues of law in the applicant 's case . In the introduction to its ruling , the ORG summarised the case before it as follows :", "“ CARDINAL . On DATE the Complainant made ( a ) a complaint to the ORG under LAW ... and ( b ) a claim under LAW DATE ... in respect of alleged ongoing interception by CARDINAL or more of the respondent agencies ( ORG , ORG and the Commissioner of Police for the ORG ) over a period dating back to DATE ...", "The Complainant also alleges harassment , intrusive surveillance , interference with property , removal of documents , interference with a web site and e - mails and interception of privileged communications by the respondent agencies .", "The Complainant seeks a final order prohibiting the agencies from intercepting any communication by him in the course of its transmission by means of a telecommunications system or retaining or otherwise processing the product of any such interception except on the grounds and subject to the procedure provided by ORG Part I.", "He also seeks an order requiring the destruction of any product of such interception held by each respondent , whether or not obtained pursuant to any warrant or authorisation ; and an award of compensation under s CARDINAL(CARDINAL ) RIPA and/or damages sustained by the Complainant in consequence of the matters complained of . ”", "The ruling dealt with a number of matters relating to the extent of its jurisdiction in respect of the applicant 's complaints relating to conduct prior to the entry into force of ORG .", "Following its ruling of DATE , the ORG proceeded to examine the applicant 's specific complaints in private .", "On DATE , the ORG notified the applicant that no determination had been made in his favour in respect of his complaints . This meant either that there had been no interception or that any interception which took place was lawful .", "Section CARDINAL(CARDINAL ) DPA grants individuals the right to request details of any information about them held by persons or organisations which record , store , or process personal data .", "Under section CARDINAL DPA , personal data is exempt from disclosure under section CARDINAL(CARDINAL ) if an exemption is required for the purpose of safeguarding national security .", "The ORG incorporates the ORG into GPE law . Section DATE ) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right , except where it is constrained to act in that way as a result of primary legislation which can not be interpreted so as to be compatible with Convention rights . Under section ORG ) , a person claiming that a public authority has acted unlawfully under section DATE ) may bring proceedings against it in the appropriate court or rely on the Convention right in any legal proceedings .", "NORP Under section CARDINAL(CARDINAL ) , if a court is satisfied that a provision of primary legislation is incompatible with a Convention right , it may make a declaration of that incompatibility . “ Court ” , in CARDINAL , is defined as meaning ORG ; ORG of ORG ; ORG ; in GPE , ORG of Justiciary ( sitting otherwise than as a trial court ) or ORG ; or in GPE and GPE or GPE , ORG or ORG . Section PERSON ) clarifies that a declaration of incompatibility does not affect the validity , continuing operation or enforcement of the legislative provision in question and is not binding on the parties to the proceedings in which it is made .", "Since DATE , the interception of communications has been regulated by ORG ( “ RIPA ” ) . The explanatory notes which accompany ORG explain that the main purpose of RIPA is to ensure that investigatory powers are exercised in accordance with human rights .", "Section CARDINAL RIPA provides for the adoption of codes of practice by the Secretary of ORG in relation to the exercise and performance of his powers and duties under LAW . Draft codes of practice must be laid before ORG and are public documents . They can only enter into force in accordance with an order of the Secretary of ORG . The Secretary of ORG can only make such an order if a draft of the order has been laid before ORG and approved by a resolution of each ORG .", "Under section CARDINAL(CARDINAL ) RIPA , a person exercising or performing any power or duty relating to interception of communications must have regard to the relevant provisions of a code of practice . The provisions of a code of practice may , in appropriate circumstances , be taken into account by courts and tribunals under LAW RIPA .", "The Interception of Communications Code of Practice ( “ the LAW ” ) entered into force on DATE . It is now available on ORG website .", "Interception is permitted in several cases , exhaustively listed in section CARDINAL(CARDINAL ) RIPA . Section CARDINAL(CARDINAL)(b ) , the relevant provision in the present case , provides that interception is lawful if authorised by an interception warrant . Any unlawful interception is a criminal offence under section CARDINAL(CARDINAL ) .", "Section CARDINAL(CARDINAL ) defines “ interception ” as follows :", "“ For the purposes of this LAW , but subject to the following provisions of this section , a person intercepts a communication in the course of its transmission by means of a telecommunication system if , and only if , he–", "( a ) so modifies or interferes with the system , or its operation ,", "( b ) so monitors transmissions made by means of the system , or", "( c ) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system ,", "as to make some or all of the contents of the communication available , while being transmitted , to a person other than the sender or intended recipient of the communication . ”", "Section CARDINAL ) allows the Secretary of ORG to issue a warrant authorising the interception of the communications described in the warrant . Under section CARDINAL(CARDINAL ) , no warrant for interception of internal communications ( i.e. communications within GPE ) shall be issued unless the Secretary of ORG believes :", "“ ( a ) that the warrant is necessary on grounds falling within subsection ( CARDINAL ) ; and", "( b ) that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct .", "Section CARDINAL(CARDINAL ) provides :", "“ Subject to the following provisions of this section , a warrant is necessary on grounds falling within this subsection if it is necessary–", "( a ) in the interests of national security ;", "( b ) for the purpose of preventing or detecting serious crime ; [ or ]", "( c ) for the purpose of safeguarding the economic well - being of GPE ... ”", "The term “ national security ” is not defined in ORG . However , it has been clarified by ORG Commissioner appointed under ORG 's predecessor ( the Interception of Communications Act DATE ) who , in his DATE report , stated that he had adopted the following definition :", "“ [ activities ] which threaten the safety or well - being of the ORG , and which are intended to undermine or overthrow Parliamentary democracy by political , industrial or violent means . ”", "Section CARDINAL(CARDINAL)(b ) RIPA defines “ serious crime ” as crime which satisfies CARDINAL of the following criteria :", "“ ( a ) that the offence or CARDINAL of the offences that is or would be constituted by the conduct is an offence for which a person who has attained the age of CARDINAL and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of DATE or more ;", "( b ) that the conduct involves the use of violence , results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose . ”", "Section CARDINAL(CARDINAL ) provides :", "“ For the purposes of this LAW detecting crime shall be taken to include–", "( a ) establishing by whom , for what purpose , by what means and generally in what circumstances any crime was committed ; and", "( b ) the apprehension of the person by whom any crime was committed ;", "and any reference in this LAW to preventing or detecting serious crime shall be construed accordingly ... ”", "Under section CARDINAL(CARDINAL ) , the Secretary of ORG must , when assessing whether the requirements in section CARDINAL(CARDINAL ) are met , consider whether the information sought to be obtained under the warrant could reasonably be obtained by other means .", "Section CARDINAL(CARDINAL ) provides that a warrant shall not be considered necessary for the purpose of safeguarding the economic well - being of the GPE unless the information which it is thought necessary to obtain is information relating to the acts or intentions of persons outside GPE .", "Section CARDINAL(CARDINAL)(a ) requires the Secretary of ORG personally to issue all warrants of the nature at issue in the present case , except in cases of urgency where he must nonetheless personally authorise the issuing of the warrant . Section CARDINAL(CARDINAL ) provides an exhaustive list of those who may apply for an interception warrant , including the heads of national intelligence bodies , heads of police forces and the ORG and Excise Commissioners .", "Paragraphs CARDINAL to CARDINAL of the LAW provide additional guidance on the application of the proportionality and necessity test in section CARDINAL(CARDINAL ) :", "“ CARDINAL Obtaining a warrant under the LAW will only ensure that the interception authorised is a justifiable interference with an individual 's rights under LAW ( the right to privacy ) if it is necessary and proportionate for the interception to take place . The LAW recognises this by first requiring that the Secretary of ORG believes that the authorisation is necessary on CARDINAL or more of the statutory grounds set out in section CARDINAL(CARDINAL ) of the LAW . This requires him to believe that it is necessary to undertake the interception which is to be authorised for a particular purpose falling within the relevant statutory ground .", "CARDINAL Then , if the interception is necessary , the Secretary of ORG must also believe that it is proportionate to what is sought to be achieved by carrying it out . This involves balancing the intrusiveness of the interference , against the need for it in operational terms . Interception of communications will not be proportionate if it is excessive in the reasonably be obtained by other means . Further , all interception should be carefully managed to meet the objective in question and must not be arbitrary or unfair . ”", "Section CARDINAL sets out the requirements as to the contents of an interception warrant as regards the identification of the communications to be intercepted :", "“ ( CARDINAL ) An interception warrant must name or describe either–", "( a ) CARDINAL person as the interception subject ; or", "( b ) a single set of LOC as the LOC in relation to which the interception to which the warrant relates is to take place .", "( CARDINAL ) The provisions of an interception warrant describing communications the interception of which is authorised or required by the warrant must comprise CARDINAL or more schedules setting out the addresses , numbers , apparatus or other factors , or combination of factors , that are to be used for identifying the communications that may be or are to be intercepted .", "( CARDINAL ) Any factor or combination of factors set out in accordance with subsection ( CARDINAL ) must be one that identifies communications which are likely to be or to include–", "( a ) communications from , or intended for , the person named or described in the warrant in accordance with subsection ( CARDINAL ) ; or", "( b ) communications originating on , or intended for transmission to , the premises so named or described . ”", "Paragraph CARDINAL.CARDINAL of the PERSON provides :", "“ An application for a warrant is made to the Secretary of ORG . Interception warrants , when issued , are addressed to the person who submitted the application . This person may then serve a copy upon any person who may be able to provide assistance in giving effect to that warrant . Each application , a copy of which must be retained by the applicant , should contain the following information :", "Background to the operation in question .", "Person or premises to which the application relates ( and how the person or LOC feature in the operation ) .", "Description of the communications to be intercepted , details of the communications service provider(s ) and an assessment of the feasibility of the interception operation where this is relevant .", "Description of the conduct to be authorised as considered necessary in order to carry out the interception , where appropriate .", "An explanation of why the interception is considered to be necessary under the provisions of section CARDINAL(CARDINAL ) .", "A consideration of why the conduct to be authorised by the warrant is proportionate to what is sought to be achieved by that conduct .", "A consideration of any unusual degree of collateral intrusion and why that intrusion is justified in the circumstances . In particular , where the communications in question might affect religious , medical or journalistic confidentiality or legal privilege , this must be specified in the application .", "Where an application is urgent , supporting justification should be provided .", "An assurance that all material intercepted will be handled in accordance with the safeguards required by LAW . ”", "Section CARDINAL RIPA is entitled “ Restrictions on use of intercepted material etc . ” and provides , insofar as relevant to internal communications , as follows :", "“ ( CARDINAL ) ... it shall be the duty of the Secretary of ORG to ensure , in relation to all interception warrants , that such arrangements are in force as he considers necessary for securing–", "( a ) that the requirements of subsections ( CARDINAL ) and ( CARDINAL ) are satisfied in relation to the intercepted material and any related communications data ;", "...", "( CARDINAL ) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each of the following–", "( a ) the number of persons to whom any of the material or data is disclosed or otherwise made available ,", "( b ) the extent to which any of the material or data is disclosed or otherwise made available ,", "( c ) the extent to which any of the material or data is copied , and", "( d ) the number of copies that are made ,", "is limited to the minimum that is necessary for the authorised purposes .", "( CARDINAL ) The requirements of this subsection are satisfied in relation to the intercepted material and any related communications data if each copy made of any of the material or data ( if not destroyed earlier ) is destroyed as soon as there are no longer any grounds for retaining it as necessary for any of the authorised purposes .", "( CARDINAL ) For the purposes of this section something is necessary for the authorised purposes if , and only if–", "( a ) it continues to be , or is likely to become , necessary as mentioned in section CARDINAL(CARDINAL ) ;", "...", "( CARDINAL ) The arrangements for the time being in force under this section for securing that the requirements of subsection ( CARDINAL ) are satisfied in relation to the intercepted material or any related communications data must include such arrangements as the Secretary of ORG considers necessary for securing that every copy of the material or data that is made is stored , for so long as it is retained , in a secure manner ... ”", "Section CARDINAL sets out extra safeguards which apply in the case of interception of external communications only .", "Section DATE imposes a broad duty on all those involved in interception under ORG to keep secret , among other matters , “ everything in the intercepted material ” ( section CARDINAL(CARDINAL)(e ) ) . Under section CARDINAL(CARDINAL ) , disclosure of such material is a criminal offence punishable by DATE imprisonment .", "Paragraph CARDINAL.CARDINAL of the Code requires all material intercepted under the authority of a section CARDINAL(l ) warrant to be handled in accordance with safeguards put in place by the Secretary of ORG under LAW of the LAW . Details of the safeguards are made available to the Commissioner ( see paragraph CARDINAL below ) and any breach of the safeguards must be reported to him .", "Paragraphs CARDINAL to CARDINAL of the Code provide further details of the relevant safeguards :", "“ Dissemination of intercepted material", "CARDINAL The number of persons to whom any of the material is disclosed , and the extent of disclosure , must be limited to the minimum that is necessary for the authorised purposes set out in section CARDINAL ) of the LAW . This obligation applies equally to disclosure to additional persons within an agency , and to disclosure outside the agency . It is enforced by prohibiting disclosure to persons who do not hold the required security clearance , and also by the need - to - know principle : intercepted material must not be disclosed to any person unless that person 's duties , which must relate to one of the authorised purposes , are such that he needs to know about the material to carry out those duties . In the same way only so much of the material may be disclosed as the recipient needs ; for example if a summary of the material will suffice , no more than that should be disclosed .", "CARDINAL The obligations apply not just to the original interceptor , but also to anyone to whom the material is subsequently disclosed . In some cases this will be achieved by requiring the latter to obtain the originator 's permission before disclosing the material further . In others , explicit safeguards are applied to secondary recipients .", "Copying", "CARDINAL Intercepted material may only be copied to the extent necessary for the authorised purposes set out in section CARDINAL ) of the LAW . Copies include not only direct copies of the whole of the material , but also extracts and summaries which identify themselves as the product of an interception , and any record referring to an interception which is a record of the identities of the persons to or by whom the intercepted material was sent . The restrictions are implemented by requiring special treatment of such copies , extracts and summaries that are made by recording their making , distribution and destruction .", "Storage", "CARDINAL Intercepted material , and all copies , extracts and summaries of it , must be handled and stored securely , so as to minimise the risk of loss or theft . It must be held so as to be inaccessible to persons without the required level of security clearance . This requirement to store intercept product securely applies to all those who are responsible for the handling of this material , including communications service providers ...", "Destruction", "CARDINAL.CARDINAL Intercepted material , and all copies , extracts and summaries which can be identified as the product of an interception , must be securely destroyed as soon as it is no longer needed for any of the authorised purposes . If such material is retained , it should be reviewed at appropriate intervals to confirm that the justification for its retention is still valid under section CARDINAL(CARDINAL ) of the LAW . ”", "Specific guidance is given as to the vetting of those involved in intercept activities in paragraph CARDINAL of the Code :", "“ CARDINAL Each intercepting agency maintains a distribution list of persons who may have access to intercepted material or need to see any reporting in relation to it . All such persons must be appropriately vetted . Any person no longer needing access to perform his duties should be removed from any such list . Where it is necessary for an officer of CARDINAL agency to disclose material to another , it is the former 's responsibility to ensure that the recipient has the necessary clearance . ”", "The ORG 's policy on security vetting was announced to ORG by the Prime Minister on DATE . In his statement , the Prime Minister explained the procedure for security vetting and the kinds of activities which would lead to the exclusion of an individual from participation in work vital to the interests of the ORG .", "The Security Service Act DATE and LAW DATE impose further obligations on the heads of the security and intelligence services to ensure the security of information in their possession .", "Section PERSON ) provides that an interception warrant for internal communications ceases to have effect at the end of the “ relevant period ” The “ relevant period ” is defined in section ORG ) as :", "“ ( a ) in relation to an unrenewed warrant issued in a case [ issued ] under the hand of a senior official , ... the period ending with DATE following DATE of the warrant 's issue ;", "( b ) in relation to a renewed warrant the latest renewal of which was by an instrument endorsed under the hand of the Secretary of ORG with a statement that the renewal is believed to be necessary on grounds falling within section CARDINAL(CARDINAL)(a ) [ national security ] or ( c ) [ economic well - being ] , ... the period of DATE beginning with DATE of the warrant 's renewal ; and", "( c ) in all other cases , ... DATE beginning with DATE of the warrant 's issue or , in the case of a warrant that has been renewed , of its latest renewal . ”", "Section CARDINAL(CARDINAL)(b ) provides that an interception warrant may be renewed by the Secretary of ORG at any time before its expiry where he believes that the warrant continues to be necessary on grounds falling within section CARDINAL(CARDINAL ) .", "NORP The Secretary of ORG is required under LAW ) to cancel an interception warrant if he is satisfied that the warrant is no longer necessary on grounds falling within section CARDINAL(CARDINAL ) .", "Section CARDINAL(CARDINAL ) imposes an obligation on the Secretary of ORG to delete any factor set out in a schedule to an interception warrant which he considers is no longer relevant for identifying communications which , in the case of that warrant , are likely to be or to include communications from , or intended for , the interception subject .", "Paragraph CARDINAL of the PERSON provides :", "“ The Secretary of ORG may renew a warrant at any point before its expiry date . Applications for renewals must be made to the Secretary of ORG and should contain an update of the matters outlined in paragraph CARDINAL above . In particular , the applicant should give an assessment of the value of interception to the operation to date and explain why he considers that interception continues to be necessary for CARDINAL or more of the purposes in section CARDINAL(CARDINAL ) . ”", "Paragraph CARDINAL.CARDINAL of the PERSON provides :", "“ The Secretary of ORG is under a duty to cancel an interception warrant if , at any time before its expiry date , he is satisfied that the warrant is no longer necessary on grounds falling within section CARDINAL(CARDINAL ) of the LAW . Intercepting agencies will therefore need to keep their warrants under continuous review . In practice , cancellation instruments will be signed by a senior official on his behalf . ”", "Paragraph CARDINAL.CARDINAL of the LAW imposes record - keeping obligations on intercepting agencies and provides :", "“ The oversight regime allows the Interception of Communications Commissioner to inspect the warrant application upon which the Secretary of ORG based his decision , and the applicant may be required to justify the content . Each intercepting agency should keep the following to be made available for scrutiny by the Commissioner as he may require :", "all applications made for warrants complying with section CARDINAL(l ) and applications made for the renewal of such warrants ;", "all warrants , and renewals and copies of schedule modifications ( if any ) ;", "where any application is refused , the grounds for refusal as given by the Secretary of ORG ;", "the dates on which interception is started and stopped . ”", "Section CARDINAL RIPA provides that the Prime Minister shall appoint an Interception of Communications Commissioner ( “ the Commissioner ” ) . He must be a person who holds or has held high judicial office . The Commissioner is appointed for a DATE , renewable term . To date , there have been CARDINAL Commissioners appointed under RIPA . Both are former judges of ORG .", "The Commissioner 's functions include to keep under review the exercise and performance by the Secretary of ORG of powers and duties in relation to interception conferred or imposed on him by ORG ; the exercise and performance of powers and duties in relation to interception by the persons on whom such powers or duties are conferred or imposed ; and the adequacy of the arrangements by virtue of which the duty which is imposed on the Secretary of ORG by section CARDINAL ( safeguards – see paragraph CARDINAL above ) is sought to be discharged .", "Section CARDINAL RIPA places a duty on those involved in the authorisation or execution of interception warrants to disclose to the Commissioner all documents and information which he requires in order to carry out his functions . As noted above ( see paragraph CARDINAL ) , the Code requires intercepting agencies to keep accurate and comprehensive records for this purpose .", "NORP In his DATE report , the Commissioner described his inspections as follows :", "“ CARDINAL . In accordance with [ my ] duties I have continued my practice of making twice yearly visits to ... the intercepting agencies and the departments of the Secretaries of State / Ministers which issue the warrants . Prior to each visit , I obtain a complete list of warrants issued or renewed or cancelled since my previous visit . I then select , largely at random , a sample of warrants for inspection . In the course of my visit I satisfy myself that those warrants fully meet the requirements of ORG , that proper procedures have been followed and that the relevant safeguards and ORG have been followed . During each visit I review each of the files and the supporting documents and , when necessary , discuss the cases with the officers concerned . I can view the product of interception . It is of first importance to ensure that the facts justified the use of interception in each case and that those concerned with interception fully understand the safeguards and ORG .", "I continue to be impressed by the quality , dedication and enthusiasm of the personnel carrying out this work on behalf of the ORG and the people of GPE . They have a detailed understanding of the legislation and are always anxious to ensure that they comply both with the legislation and the appropriate safeguards ... ”", "The Commissioner is required to report to the Prime Minister if he finds that there has been a violation of the provisions of ORG or if he considers that the safeguards under section CARDINAL have proved inadequate ( sections CARDINAL(CARDINAL ) and ( CARDINAL ) RIPA ) . The Commissioner must also make an DATE report to the Prime Minister regarding the exercise of his functions ( section CARDINAL(CARDINAL ) ) . Under section PERSON ) , the Prime Minister must lay the DATE report of the Commissioner before ORG . Finally , the Commissioner is required to assist the ORG with any request for information or advice it may make ( section ORG ) and paragraph CARDINAL below ) ) .", "NORP In his DATE report , the Commissioner noted , as regards the discharge of their duties by the Secretaries of State :", "“ CARDINAL . ... I have been impressed with the care that they take with their warrantry work , which is very time consuming , to ensure that warrants are issued only in appropriate cases and , in particular , in ensuring that the conduct authorised is proportionate to what is sought to be achieved by the intercepts . ”", "At paragraph CARDINAL , on the question of safeguards , he said :", "“ ... my advice and approval were sought and given in respect of the safeguard documents either before or shortly after DATE . The ORG Secretary also sought my advice in relation to them and they were approved by him ... ”", "As to the need for secret surveillance powers , the Commissioner commented :", "“ CARDINAL . The interception of communications is , as my predecessors have expressed in their ORG , an invaluable weapon for the purpose set out in section CARDINAL(CARDINAL ) of ORG and , in particular , in the battle against serious crime ... ”", "In his report for DATE , the Commissioner noted :", "“ CARDINAL . Many members of the public are suspicious about the interception of communications , and some believe that their own conversations are subject to unlawful interception by the security , intelligence or law enforcement agencies ... In my oversight work I am conscious of these concerns . However , I am as satisfied as I can be that the concerns are , in fact , unfounded . Interception of an individual 's communications can take place only after a Secretary of ORG has granted a warrant and the warrant can be granted on strictly limited grounds set out in LAW , essentially the interests of national security and the prevention or detection of serious crime . Of course , it would theoretically be possible to circumvent this procedure , but there are in place extensive safeguards to ensure that this can not happen , and it is an important part of my work to ensure that these are in place , and that they are observed . Furthermore , any attempt to get round the procedures which provide for legal interception would , by reason of the safeguards , involve a major conspiracy within the agency concerned which I believe would , for practical purposes , be impossible . I am as satisfied as it is possible to be that deliberate unlawful interception of communications of the citizen does not take place ... ”", "He said of the section CARDINAL safeguards :", "“ DATE . In addressing the safeguards contained within CARDINAL of RIPA , ORG developed a new set of internal compliance documentation for staff , together with an extensive training programme that covered staff responsibilities under both ORG and LAW . This compliance documentation was submitted to the Foreign Secretary who was satisfied that it described and governed the arrangements required under LAW . I have also been told it also constituted the written record of the arrangements required to be put in place by the Director , ORG , under section CARDINAL(CARDINAL)(a ) of the Intelligence Services Act DATE ( to ensure that no information is obtained or disclosed by ORG except so far as is necessary for its statutory functions ) . In discharging my functions under LAW ) , I examined the documentation and the processes which underpin it and satisfied myself that adequate arrangements existed for the discharge of ORG duties under LAW . Of course , ORG recognises that its compliance processes must evolve over time , particularly as they become more familiar with the intricacies of the new legislation and develop new working practices , and that the process of staff education remains a continuing one . To this end , ORG has developed further training programmes and is issuing revised compliance documentation as part of the ongoing process ( see also ... paragraph CARDINAL under Safeguards ) .", "In advance of the coming into force of ORG , ORG approached me as to the warrants it would seek after that date and provided a detailed analysis as to how those warrants would be structured – this was helpful as it gave me an insight into how ORG saw the workings of ORG and permitted me to comment in advance . Since the commencement of ORG , in reviewing warrants I have looked carefully at the factors to be considered by the Secretary of ORG when determining whether to issue an interception warrant , and especially the new requirement to consider ' proportionality ' under section [ CARDINAL ) ] of ORG . ”", "Again , he commented on the diligence of the authorities in carrying out their duties under LAW :", "“ CARDINAL . Sections CARDINAL and CARDINAL of ORG lay a duty on the Secretary of ORG to ensure that arrangements are in force as safeguards in relation to dissemination , disclosure , copying , storage , and destruction etc . , of intercepted material . These sections require careful and detailed safeguards to be drafted by each of the agencies referred to earlier in this ORG and for those safeguards to be approved by the Secretary of ORG . This had been done . I have been impressed by the care with which these documents have been drawn up , reviewed and updated in the light of technical and administrative developments . Those involved in the interception process are aware of the invasive nature of this technique , and care is taken to ensure that intrusions of privacy are kept to the minimum . There is another incentive to agencies to ensure that these documents remain effective in that the value of interception would be greatly diminished as a covert intelligence tool should its existence and methodology become too widely known . The sections CARDINAL and QUANTITY requirements are very important . I am satisfied that the agencies are operating effectively within their safeguards . ”", "DATE . The Commissioner 's DATE report noted :", "“ CARDINAL . ... As I mentioned in my last Report I have been impressed by the care with which [ the safeguard ] documents have been drawn up . My advice and approval was sought for the documents and I am approached to agree amendments to the safeguards when they are updated in light of technical and administrative developments . ”", "This was repeated in paragraph CARDINAL of his DATE report .", "NORP In his DATE report , the Commissioner explained his role as follows :", "“ CARDINAL . ... essentially I see the role of Commissioner as encompassing these primary headings :", "( a ) To protect people in GPE from any unlawful intrusion of their privacy . This is provided for by LAW . I must be diligent to ensure that this does not happen , and alert to ensure that there are systems in place so that this does not and can not happen . Over the long period that I have held my present post , I have found no evidence whatsoever of any desire within the ORG or the Law Enforcement Agencies in this field to act wrongfully or unlawfully . On the contrary , I have found a palpable desire on the part of all these GPE to ensure that they do act completely within the CARDINAL walls of the law . To this end , they welcome the oversight of the Commissioner and over DATE have frequently sought my advice on issues that have arisen , and they have invariably accepted it . In any event , I believe that the legislation together with the safeguards and ORG that are in place make it technically virtually impossible to deliberately intercept a citizen 's communications unlawfully with intent to avoid legal requirements .", "( b ) To assist the Agencies to do the work entrusted to them and , bearing in mind the number of organisations that I am now required to oversee , this occurs quite frequently . My work is , of course , limited to the legal as opposed to the operational aspects of their work . They take great care with their work and I have been impressed by its quality .", "( c ) To ensure that proper safeguards and Codes of Practice are in place to protect the public and the Agencies themselves . These have to be approved by the Secretaries of ORG . But every Secretary of ORG with whom I have worked has required to be informed as to whether the Commissioner has approved them before he or she is willing to do so .", "( d ) To advise Ministers , and Government Departments , in relation to issues arising on the interception of communications , the acquisition and disclosure of communications data , to approve the safeguards documents and ORG . ”", "The Commissioner said of the Secretaries of ORG whom he had met in DATE :", "“ DATE . It is clear to me that each of them gives a substantial amount of time and takes considerable care to satisfy himself or herself that warrants are necessary for the authorised purposes , and that what is proposed is proportionate . If the Secretary of ORG wishes to have further information in order to be satisfied that he or she should grant the warrant then it is requested and given . Outright and final refusal of an application is comparatively rare , because the requesting agencies and the senior officials in the Secretary of ORG 's ORG scrutinise the applications with care before they are submitted for approval . However , the Secretary of ORG may refuse to grant the warrant if he or she considers , for example , that the strict requirements of necessity or proportionality are not met , and the agencies are well aware that the Secretary of ORG does not act as a ' rubber stamp ' . ”", "In his DATE report , The Commissioner commented on the importance of interception powers in tackling terrorism and serious crime :", "“ CARDINAL I continue to be impressed as to how interception has contributed to a number of striking successes during DATE . It has played a key role in numerous operations including , for example , the prevention of murders , tackling large - scale drug importations , evasion of Excise duty , people smuggling , gathering intelligence both within GPE and overseas on terrorist and various extremist organisations , confiscation of firearms , serious violent crime and terrorism . I have provided fully detailed examples in FAC to this Report . I think it is very important that the public is re - assured as to the benefits of this highly intrusive investigative tool particularly in light of the on - going debate about whether or not intercept product should be used as evidence in a court of law .", "...", "CARDINAL As I said in my first ORG DATE , the interception of communications is an invaluable weapon for the purposes set out in section CARDINAL(CARDINAL ) of RIPA . It has continued to play a vital part in the battle against terrorism and serious crime , and one that would not have been achieved by other means ... ”", "As regards errors by the relevant agencies in the application of ORG 's provisions , he noted :", "“ CARDINAL interception errors and breaches have been reported to me during the course of DATE . This is the same number of errors reported in my first DATE Report ( which was for a shorter period ) and is a significant decrease in the number reported by my predecessor . I consider the number of errors to be too high . By way of example , details of some of these errors are recorded below . It is very important from the point of view of the public that I stress that none of the breaches or errors were deliberate , that all were caused by human error or procedural error or by technical problems and that in every case either no interception took place or , if there was interception , the product was destroyed immediately on discovery of the error . The most common cause of error tends to be the simple transposition of numbers by mistake e.g. , DATE instead of DATE . The examples that I give are typical of the totality and are anonymous so far as the targets are concerned . Full details of all the errors and breaches are set out in LOC . ”", "According to the statistics in the report , on DATE , CARDINAL interception warrants issued by the ORG Secretary were in force .", "The ORG was established under section CARDINAL ) RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by RIPA . Members of the tribunal must hold or have held high judicial office or be a qualified lawyer of DATE standing . Any person may bring a claim before the ORG and , save for vexatious or frivolous applications , the ORG must determine all claims brought before it ( sections CARDINAL(CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) RIPA ) .", "DATE . Section CARDINAL(CARDINAL ) provides that the ORG is the only appropriate forum in relation to proceedings for acts incompatible with Convention rights which are proceedings against any of the intelligence services ; and complaints by persons who allege to have been subject to the investigatory powers of ORG . It has jurisdiction to investigate any complaint that a person 's communications have been intercepted and , where interception has occurred , to examine the authority for such interception . Sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL)(c ) provide that the ORG is to apply the principles applicable by a court on an application for judicial review .", "Under LAW ) ORG , there is no appeal from a decision of the ORG “ except to such extent as the Secretary of ORG may by order otherwise provide ” . No order has been passed by the Secretary of ORG .", "Under section PERSON ) , the ORG has the power to require a relevant Commissioner to provide it with all such assistance ( including the Commissioner 's opinion as to any issue falling to be determined by the ORG ) as it thinks fit . Section PERSON ) and ( CARDINAL ) requires those involved in the authorisation and execution of an interception warrant to disclose or provide to the ORG all documents and information it may require .", "Section CARDINAL(CARDINAL ) deals with reasons for the ORG 's decisions and provides that :", "“ Where the ORG determine any proceedings , complaint or reference brought before or made to them , they shall give notice to the complainant which ( subject to any rules made by virtue of section CARDINAL(CARDINAL)(i ) ) shall be confined , as the case may be , to either—", "( a ) a statement that they have made a determination in his favour ; or", "( b ) a statement that no determination has been made in his favour . ”", "The ORG has the power to award compensation and to make such other orders as it thinks fit , including orders quashing or cancelling any section CARDINAL(CARDINAL ) warrant and orders requiring the destruction of any records obtained under a section CARDINAL(CARDINAL ) warrant ( section CARDINAL(CARDINAL ) RIPA ) . In the event that a claim before the ORG is successful , the ORG is generally required to make a report to the Prime Minister ( section CARDINAL(CARDINAL ) ) .", "As to procedure , section CARDINAL ) provides as follows :", "“ Subject to any rules made under LAW , the ORG shall be entitled to determine their own procedure in relation to any proceedings , complaint or reference brought before or made to them . ”", "Section CARDINAL(CARDINAL ) RIPA provides that the Secretary of ORG may make rules regulating any matters preliminary or incidental to , or arising out of , the hearing or consideration of any proceedings before it . Under section ORG ) , such rules may :", "“ ( c ) prescribe the form and manner in which proceedings are to be brought before the ORG or a complaint or reference is to be made to the ORG ;", "...", "( f ) prescribe the forms of hearing or consideration to be adopted by the ORG in relation to particular proceedings , complaints or references ... ;", "( g ) prescribe the practice and procedure to be followed on , or in connection with , the hearing or consideration of any proceedings , complaint or reference ( including , where applicable , the mode and burden of proof and the admissibility of evidence ) ;", "( h ) prescribe orders that may be made by the ORG under section PERSON ) or ( CARDINAL ) ;", "( i ) require information about any determination , award , order or other decision made by the ORG in relation to any proceedings , complaint or reference to be provided ( in addition to any statement under section CARDINAL ) ) to the person who brought the proceedings or made the complaint or reference , or to the person representing his interests . ”", "Section CARDINAL(CARDINAL ) provides that in making the rules the Secretary of ORG shall have regard to :", "“ ( a ) the need to secure that matters which are the subject of proceedings , complaints or references brought before or made to the ORG are properly heard and considered ; and", "( b ) the need to secure that information is not disclosed to an extent , or in a manner , that is contrary to the public interest or prejudicial to national security , the prevention or detection of serious crime , the economic well - being of GPE or the continued discharge of the functions of any of the intelligence services . ”", "NORP The Secretary of ORG has adopted rules to govern the procedure before the ORG in the form of ORG ( “ the Rules ” ) . The Rules cover various aspects of the procedure before the ORG . As regards disclosure of information , Rule CARDINAL provides :", "“ ( CARDINAL ) The ORG shall carry out their functions in such a way as to secure that information is not disclosed to an extent , or in a manner , that is contrary to the public interest or prejudicial to national security , the prevention or detection of serious crime , the economic well - being of GPE or the continued discharge of the functions of any of the intelligence services .", "( CARDINAL ) Without prejudice to this general duty , but subject to paragraphs ( CARDINAL ) and ( CARDINAL ) , the ORG may not disclose to the complainant or to any other person :", "( a ) the fact that the ORG have held , or propose to hold , an oral hearing under rule ORG ) ;", "( b ) any information or document disclosed or provided to the ORG in the course of that hearing , or the identity of any witness at that hearing ;", "( c ) any information or document otherwise disclosed or provided to the ORG by any person pursuant to section CARDINAL ) of the LAW ( or provided voluntarily by a person specified in section CARDINAL(CARDINAL ) ) ;", "( d ) any information or opinion provided to the ORG by a Commissioner pursuant to section PERSON ) of the Act ;", "( e ) the fact that any information , document , identity or opinion has been disclosed or provided in the circumstances mentioned in sub - paragraphs ( b ) to ( d ) .", "( CARDINAL ) The ORG may disclose anything described in paragraph ( CARDINAL ) with the consent of :", "( a ) in the case of sub - paragraph ( a ) , the person required to attend the hearing ;", "( b ) in the case of sub - paragraphs ( b ) and ( c ) , the witness in question or the person who disclosed or provided the information or document ;", "( c ) in the case of sub - paragraph ( d ) , the Commissioner in question and , to the extent that the information or opinion includes information provided to the Commissioner by another person , that other person ;", "( d ) in the case of sub - paragraph ( e ) , the person whose consent is required under this rule for disclosure of the information , document or opinion in question .", "( CARDINAL ) The ORG may also disclose anything described in paragraph ( CARDINAL ) as part of the information provided to the complainant under rule CARDINAL ) , subject to the restrictions contained in rule CARDINAL ) and ( CARDINAL ) .", "( CARDINAL ) The ORG may not order any person to disclose any information or document which the ORG themselves would be prohibited from disclosing by virtue of this rule , had the information or document been disclosed or provided to them by that person .", "( CARDINAL ) The ORG may not , without the consent of the complainant , disclose to any person holding office under the ORG ( except a Commissioner ) or to any other person anything to which paragraph ( CARDINAL ) applies .", "( CARDINAL ) This paragraph applies to any information or document disclosed or provided to the ORG by or on behalf of the complainant , except for ... statements [ as to the complainant 's name , address and date of birth and the public authority against which the proceedings are brought ] . ”", "Rule CARDINAL deals with the forms of hearings and consideration of the complaint :", "“ ( CARDINAL ) The ORG 's power to determine their own procedure in relation to section CARDINAL proceedings and complaints shall be subject to this rule .", "( CARDINAL ) The ORG shall be under no duty to hold oral hearings , but they may do so in accordance with this rule ( and not otherwise ) .", "( CARDINAL ) The ORG may hold , at any stage of their consideration , oral hearings at which the complainant may make representations , give evidence and call witnesses .", "( CARDINAL ) The ORG may hold separate oral hearings which :", "( a ) the person whose conduct is the subject of the complaint ,", "( b ) the public authority against which the section CARDINAL proceedings are brought , or", "( c ) any other person specified in section CARDINAL(CARDINAL ) of the LAW ,", "may be required to attend and at which that person or authority may make representations , give evidence and call witnesses .", "( CARDINAL ) Within a period notified by the ORG for the purpose of this rule , the complainant , person or authority in question must inform the ORG of any witnesses he or it intends to call ; and no other witnesses may be called without the leave of the ORG .", "( CARDINAL ) The ORG 's proceedings , including any oral hearings , shall be conducted in private . ”", "The taking of evidence is addressed in LAW :", "“ ( CARDINAL ) The ORG may receive evidence in any form , and may receive evidence that would not be admissible in a court of law .", "( CARDINAL ) The ORG may require a witness to give evidence on oath .", "( CARDINAL ) No person shall be compelled to give evidence at an oral hearing under rule MONEY ) . ”", "Finally , Rule CARDINAL provides guidance on notification to the complainant of the ORG 's findings :", "“ ( CARDINAL ) In addition to any statement under section CARDINAL ) of the LAW , the ORG shall provide information to the complainant in accordance with this rule .", "( CARDINAL ) Where they make a determination in favour of the complainant , the ORG shall provide him with a summary of that determination including any findings of fact .", "...", "( CARDINAL ) The duty to provide information under this rule is in all cases subject to the general duty imposed on the ORG by rule CARDINAL ) .", "( CARDINAL ) No information may be provided under this rule whose disclosure would be restricted under rule CARDINAL ) unless the person whose consent would be needed for disclosure under that rule has been given the opportunity to make representations to the ORG . ”", "In its joint ruling on preliminary issues of law ( see paragraph CARDINAL above ) , the ORG clarified a number of aspects of its procedure . The ORG sat , for the first time , in public . As regards the ORG procedures and the importance of the cases before it , the ORG noted :", "“ CARDINAL . The challenge to rule ORG ) [ requiring oral hearings to be held in private ] and to most of the other rules governing the basic procedures of the ORG have made this the most significant case ever to come before the ORG . The ORG are left in no doubt that their rulings on the legal issues formulated by the parties have potentially important consequences for dealing with and determining these and future proceedings and complaints . Counsel and those instructing them were encouraged to argue all the issues in detail , in writing as well as at the oral hearings held over a period of DATE in DATE and DATE . At DATE the written submissions were completed when the parties provided , at the request of the ORG , final comments on how the Rules ought , if permissible and appropriate , to be revised and applied by the ORG , in the event of a ruling that CARDINAL or more of the Rules are incompatible with Convention rights and/or ultra vires . ”", "The ORG concluded ( at paragraph CARDINAL ) that :", "“ ... ( a ) the hearing of the preliminary issues should have been conducted in public , and not in private as stated in rule ORG ) ; ( b ) the reasons for the legal rulings should be made public ; and ( c ) in all other respects the Rules are valid and binding on the ORG and are compatible with Articles CARDINAL , CARDINAL and DATE of the Convention . ”", "Specifically on the applicability of LAW to the proceedings before it , the ORG found :", "“ CARDINAL . The conclusion of the ORG is that LAW applies to a person 's claims under section CARDINAL(CARDINAL)(a ) and to his complaints under section CARDINAL(CARDINAL)(b ) of ORG , as each of them involves ' the determination of his civil rights ' by the ORG within the meaning of Article CARDINAL ) . ”", "After a review of the ORG 's case - law on the existence of a “ civil right ” , the ORG explained the reasons for its conclusions :", "“ CARDINAL . The ORG agree with the Respondents that there is a sense in which the claims and complaints brought by virtue of s CARDINAL(CARDINAL ) of ORG fall within the area of public law . They arise out of the alleged exercise of very wide discretionary , investigatory , state powers by public authorities , such as the intelligence and security agencies and the police . They are concerned with matters of national security , of public order , safety and welfare . The function of the ORG is to investigate and review the lawfulness of the exercise of such powers . This is no doubt intended to ensure that the authorities comply with their relevant public law duties , such as by obtaining appropriate warrants and authorisations to carry out interception and surveillance .", "The public law element is reinforced by the directions to the ORG in sections ORG ) and CARDINAL ) of ORG to apply to the determinations the same principles as would be applied by a court in judicial review proceedings . Such proceedings are concerned with the procedural and substantive legality of decisions and actions of public authorities .", "The fact that activities , such as interception of communications and surveillance , may also impact on the Convention rights of individuals , such as the right to respect for private life and communications in DATE , does not of itself necessarily mean that the ORG make determinations of civil rights ...", "Further , the power of the ORG to make an award of compensation does not necessarily demonstrate that the ORG determine civil rights ...", "Applying the approach in the GPE cases that account should be taken of the content of the rights in question and of the effect of the relevant decision on them ... , the ORG conclude that the public law or public order aspects of the claims and complaints to the ORG do not predominate and are not decisive of the juristic character of the determinations of the ORG . Those determinations have a sufficiently decisive impact on the private law rights of individuals and organisations to attract the application of LAW .", "The jurisdiction of the ORG is invoked by the initiation of claims and complaints by persons wishing to protect , and to obtain redress for alleged infringements of , their underlying rights of confidentiality and of privacy for person , property and communications . There is a broad measure of protection for such rights in LANGUAGE private law in the torts of trespass to person and property , in the tort of nuisance , in the tort of misfeasance in a public office , in the statutory protection from harassment and in the developing equitable doctrine of breach of confidence ...", "Since DATE there has been added statutory protection for invasion of Article CARDINAL rights by public authorities . This follows from the duties imposed on public authorities by section CARDINAL and the rights conferred on victims by section CARDINAL of the [ LAW ] . The concept of ' civil rights and obligations ' is a fair and reasonable description of those common law and statutory rights and obligations , which form the legal foundation of a person 's right to bring claims and make complaints by virtue of CARDINAL .", "The fact that the alleged infringements of those rights is by public authorities in purported discretionary exercise of administrative investigatory powers does not detract from the ' civil ' nature of the rights and obligations in issue ...", "...", "For all practical purposes the ORG is also the only forum for the effective investigation and determination of complaints and for granting redress for them where appropriate ...", "In brief , viewing the concept of determination of ' civil rights ' in the round and in the light of the GPE decisions , the ORG conclude that ORG , which puts all interception , surveillance and similar intelligence gathering powers on a statutory footing , confers , as part of that special framework , additional ' civil rights ' on persons affected by the unlawful exercise of those powers . It does so by establishing a single specialised ORG for the judicial determination and redress of grievances arising from the unlawful use of investigatory powers . ”", "As to the proper construction of Rule CARDINAL regarding oral hearings , the ORG found :", "“ CARDINAL . The language of rule CARDINAL ) is clear :", "' The ORG shall be under no duty to hold oral hearings but may do so in accordance with this rule ( and not otherwise ) . '", "Oral hearings are in the discretion of the ORG . They do not have to hold them , but they may , if they so wish , do so in accordance with Rule CARDINAL .", "In the exercise of their discretion the ORG ' may hold separate oral hearings . ' That exercise of discretion , which would be a departure from normal adversarial procedures , is expressly authorised by rule ORG ) .", "The ORG should explain that , contrary to the views apparently held by the ORG ' advisers , the discretion in rule ORG ) neither expressly nor impliedly precludes the ORG from exercising their general discretion under rule ORG ) to hold inter partes oral hearings . It is accepted by the Respondents that the ORG may , in their discretion , direct joint or collective oral hearings to take place . That discretion was in fact exercised in relation to this very hearing . The exercise of discretion must take into account the relevant provisions of other rules , in particular the ORG 's general duty under rule CARDINAL ) to prevent the potentially harmful disclosure of sensitive information in the carrying out of their functions . As already explained , this hearing has neither required nor involved the disclosure of any such information or documents emanating from the Complainants , the Respondents or anyone else . The hearing has only been concerned with undiluted legal argument about the procedure of the ORG .", "The ORG have reached the conclusion that the absence from the Rules of an absolute right to either an inter partes oral hearing , or , failing that , to a separate oral hearing in every case is within the rule - making power in section CARDINAL ) . It is also compatible with the Convention rights under LAW . Oral hearings involving evidence or a consideration of the substantive merits of a claim or complaint run the risk of breaching the [ neither confirm nor deny ] policy or other aspects of national security and the public interest . It is necessary to provide safeguards against that . The conferring of a discretion on the ORG to decide when there should be oral hearings and what form they should take is a proportionate response to the need for safeguards , against which the tribunal , as a judicial body , can balance the ORG ' interests in a fair trial and open justice according to the circumstances of the particular case . ”", "Regarding Rule CARDINAL(CARDINAL ) which stipulates that oral hearings must be held in private , the ORG held :", "“ CARDINAL . The language of rule CARDINAL ) is clear and unqualified .", "' The ORG 's proceedings , including any oral hearings , shall be conducted in private . '", "The ORG are given no discretion in the matter . Rule CARDINAL(CARDINAL)(a ) stiffens the strictness of the rule by providing that the ORG may not even disclose to the Complainant or to any other person the fact that the ORG have held , or propose to hold , a separate oral hearing under rule ORG ) . The fact of an oral hearing is kept private , even from the other party ...", "...", "... the very fact that this rule is of an absolute blanket nature is , in the judgment of the ORG in the circumstances , fatal to its validity ... the ORG have concluded that the very width of the rule preventing any hearing of the proceedings in public goes beyond what is authorised by LAW .", "...", "There is no conceivable ground for requiring legal arguments on pure points of procedural law , arising on the interpretation and validity of the Rules , to be held in private ...", "Indeed , purely legal arguments , conducted for the sole purpose of ascertaining what is the law and not involving the risk of disclosure of any sensitive information , should be heard in public . The public , as well as the parties , has a right to know that there is a dispute about the interpretation and validity of the relevant law and what the rival legal contentions are .", "The result is that rule ORG ) is ultra vires section CARDINAL . It does not bind the ORG . The Secretary of ORG may exercise his discretion under section CARDINAL(CARDINAL ) to make fresh rules on the point , but , unless and until he does , the ORG may exercise their discretion under section CARDINAL ) to hear the legal arguments in public under rule CARDINAL ) , subject to their general and specific duties , such as rule CARDINAL ) in the Rules and in ORG . It is appropriate to exercise that discretion to direct that the hearing of the preliminary issues shall be treated as if it had taken place under rule CARDINAL ) in public , because such a preliminary hearing of purely legal arguments solely on procedural issues does not pose any risk to the duty of the ORG under rule CARDINAL ) or to the maintenance of the [ neither confirm nor deny ] policy . The transcripts of the hearing should be made available for public consumption . ”", "Regarding other departures from the normal rules of adversarial procedure as regards the taking of evidence and disclosure in Rule CARDINAL , the ORG concluded :", "“ CARDINAL . ... that these departures from the adversarial model are within the power conferred on the Secretary of ORG by section CARDINAL(CARDINAL ) , as limited by section CARDINAL(CARDINAL ) . A reasonable rule - making body , having regard to the mandatory factors in section CARDINAL(CARDINAL ) , could properly conclude that these departures were necessary and proportionate for the purposes stated in LAW ) . In the context of the factors set out in that provision and , in particular , the need to maintain the [ neither confirm nor deny ] policy , the procedures laid down in the Rules provide a ' fair trial ' within Article CARDINAL for the determination of the civil rights and obligations arising in claims and complaints under section CARDINAL of RIPA .", "They are also compatible with Convention rights in Articles CARDINAL and CARDINAL , taking account of the exceptions for the public interest and national security in Articles CARDINAL(CARDINAL ) and ORG ) , in particular the effective operation of the legitimate policy of [ neither confirm nor deny ] in relation to the use of investigatory powers . The disclosure of information is not an absolute right where there are competing interests , such as national security considerations , and it may be necessary to withhold information for that reason , provided that , as in the kind of cases coming before this ORG , it is strictly necessary to do so and the restriction is counterbalanced by judicial procedures which protect the interests of the Complainants ... ”", "Finally , as regards the absence of reasons following a decision that the complaint is unsuccessful , the ORG noted :", "“ CARDINAL . The ORG conclude that , properly interpreted in context on ordinary principles of domestic law , rule CARDINAL and section CARDINAL ) of ORG do not apply to prevent publication of the reasons for the rulings of the ORG on the preliminary issues on matters of procedural law , as they are not a ' determination ' of the proceedings brought before them or of the complaint made to them within the meaning of those provisions . Those provisions concern decisions of the ORG which bring the claim or complaint to an end , either by a determination of the substantive claim or complaint on its merits ...", "... In the circumstances there can be publication of the reasons for legal rulings on preliminary issues , but , so far as determinations are concerned , the ORG are satisfied that section CARDINAL ) and rule CARDINAL are valid and binding and that the distinction between information given to the successful complainants and that given to unsuccessful complainants ( where the [ neither confirm nor deny ] policy must be preserved ) is necessary and justifiable . ”", "In a second ruling on preliminary issues of law in FAC and others case , which involved external communications ( i.e. communications between GPE and abroad ) , the ORG issued its findings on the complaint in that case . The issue for consideration was identified as :", "“ CARDINAL . ... whether ... ' the process of filtering intercepted telephone calls made from the GPE to overseas telephones ... breaches Article CARDINAL(CARDINAL ) [ of LAW ] because it is not ' in accordance with the law ' ... ”", "Given that the challenge in the case related solely to the lawfulness of the filtering process as set out in the ORG legislation , the ORG issued a public ruling which explained the reasons for its findings in the case . In its ruling , it examined the relevant legislative provisions and concluded that they were sufficiently accessible and foreseeable to be in accordance with the law .", "As the applicant 's case demonstrates , once general legal issues have been determined , if the ORG is required to consider the specific facts of the case , and in particular whether interception has taken place , any such consideration will take place in private . Rule CARDINAL prevents the applicant participating in this stage of proceedings ." ]

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

[ "6-1" ]

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[ "The applicants , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON , are NORP nationals and live in GPE . They are represented before the ORG by Mr PERSON and Mr B. PERSON , lawyers practising in ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "Until DATE , the applicants lived in GPE in PERSON , ORG , where they own property . Sometime in DATE , Dolapdere inhabitants started to refuse to serve as village guards – a security system designed to protect villages against possible terrorist attacks by the ORG militants . Upon their continued refusal , the security forces evacuated the hamlet .", "The applicants had to move to the city centre of ORG , where they currently live . On DATE the security forces set fire to the houses and the cultivated fields in the village .", "Following the incidents , the applicants filed applications with the administrative and military authorities , asking for an authorization to return to their hamlet , or in the alternative , to continue to cultivate their fields . They also requested to be remedied for the incidents . The applicants maintained that they were unable to provide copies of the complaints and requests they had filed but stated that the authorities had either disregarded or rejected them .", "The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not destroyed the applicants’ village or forced them to leave their homes .", "The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .", "On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .", "In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .", "The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .", "A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI )" ]

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[ "PERSON , the applicant 's brother , was a journalist working for the newspaper PERSON in ORG .", "PERSON was a DATE newspaper , with its main office in GPE . Its owners described the newspaper as seeking to reflect NORP opinion . It was published between CARDINAL DATE and DATE . By the time it ceased publication , numerous prosecutions had been brought against it on the grounds , inter alia , that it had published the declarations of the ORG ( ORG of Kurdistan ) and disseminated separatist propaganda . Following a search - and - arrest operation at the PERSON office in GPE on DATE , charges were brought against , inter alia , the editor , the manager and the owner of the newspaper , alleging that they were members of the ORG and had assisted the ORG and made propaganda in its favour . On DATE the GPE office , which had been taken over by PERSON successor , the newspaper ORG , was blown up by a bomb .", "PERSON , who was unmarried , lived with his father in the village of GPE , outside ORG . Besides working as a journalist , he was a member of ORG .", "On DATE PERSON sent a press release to the governor of ORG . This stated that death threats had been made against ORG representative carrying out the distribution of PERSON and against the driver and owner of the taxi used for deliveries . It stated that it was known that persons working for PERSON had been attacked or killed and that those involved in the sale and distribution of the newspaper had been the victims of arson attacks and assaults . Reference was made to the fact that in other provinces in the south - east security officers were protecting the offices , employees and distributors . PERSON requested that measures be taken to protect the safety of people working for the FAC office , including himself , another journalist and the newspaper 's distributor and driver .", "NORP By letter dated DATE , the governor 's office replied that PERSON request for protection had been examined . No protection had been assigned to distributors of newspapers in any of the provinces nor had there been any attacks on , or threats to , distributors in the area . His request was refused .", "On DATE PERSON issued a press release stating that attacks against persons involved in the sale and distribution of PERSON in ORG were continuing , despite urgent requests for protective measures . Details were given of an arson attack on a news - stand on DATE and on another news - stand on DATE . The press release criticised the governor for not ensuring the safe distribution of the newspaper and called on him and the police to fulfil their responsibilities .", "Following a complaint by the governor , PERSON was charged with insulting the governor through the publication and circulation of the press release . He was taken into detention at ORG on DATE and released DATE .", "At TIME on DATE PERSON left the newspaper office in the centre of LOC and walked to the coach station . At CARDINAL , he caught the Şanlıurfa to PERSON coach from PERSON . Before the coach reached the junction of the main road with the road to ORG , it was overtaken by a white ORG car , which turned into the village road , turned around and parked , with its headlights off . The car was noticed at TIME by PERSON , TIME at a nearby construction site . PERSON was the only passenger to leave the coach when it stopped at the junction . He walked up the road towards the village . PERSON heard voices arguing and a cry for help , followed by CARDINAL shots .", "The incident was reported to the gendarmes who rapidly arrived on the scene . PERSON body was discovered with CARDINAL bullet wounds in the head . The applicant and other members of his family came from the village to see what had happened .", "Captain PERSON , the central district gendarmerie commander , took charge of the investigation at the scene . CARDINAL cartridges were found and handed over to the public prosecutor when he arrived . The victim 's mouth was found to have been covered with CARDINAL strips of packaging tape and there was a rope around his neck . A piece of paper bearing the letters NORP and Y , stained with blood , was also discovered . A sketch map of the scene was drawn up . Captain Kargılı took photographs with his own camera and looked , unsuccessfully , for tyre marks . A statement was taken by the gendarmes from PERSON , TIME , who stated that because of the darkness he had not seen the victim , the assailants or the car .", "An examination of the body was carried out by a doctor in the presence of the public prosecutor on DATE . The report found that CARDINAL bullets had entered the head and noted the mark of a blow to the right temple , a graze on the right hand , bruising on the back and a semi - circular lesion on the left hand , which resembled a bite mark . It concluded that PERSON had died due to destruction of brain tissue and brain haemorrhage .", "On DATE statements were taken by the gendarmes from the driver of the ORG coach and his assistant . The gendarmes also took statements DATE from the applicant , his father , CARDINAL of his brothers and CARDINAL passengers on the coach .", "On DATE Captain PERSON carried out a search , with a warrant , of the house where PERSON had lived , removing , inter alia , books , newspaper cuttings , a photograph and CARDINAL cassettes for further examination .", "On DATE Captain PERSON informed the public prosecutor of the search , enclosing several of the items removed from the house and other documents concerning the investigation .", "On DATE the public prosecutor issued a decision to continue the investigation , which stated that it had not been possible to identify or apprehend the perpetrators of the killing and that the search should continue until the expiry of the DATE limitation period .", "On DATE an armed attack was carried out on the ORG Ticaret shop in GPE . The suspected perpetrators were pursued by police and a number of persons were arrested . The police incident report dated DATE stated that the suspect PERSON had been seen trying to escape by running up the stairs of a block of flats and was apprehended in a breathless , perspiring state . It was understood that he was returning to recover the NORP QUANTITY pistol located in front of the building .", "A ballistics report dated DATE reported that the NORP pistol had been used in CARDINAL other shooting incidents , including the killing of PERSON . In an indictment dated DATE , also concerning CARDINAL other defendants , PERSON was charged with the offence of membership of the outlawed ORG organisation and carrying out activities with the intention of removing part of the country from the sovereignty of the ORG and forming a NORP State based on NORP principles . These activities were said to include the attack on Aydın Ticaret and the CARDINAL incidents in which the NORP pistol had been used .", "NORP In the undated interrogation notes taken at ORG , PERSON was recorded as admitting his membership of the ORG and his participation in the attack on PERSON . He denied participation in the killing of PERSON and stated that he had been given the NORP pistol by another member of the group . In his statement of CARDINAL DATE to the public prosecutor , PERSON stated that his confessions to the police had been obtained by torture and denied that he had joined the ORG or that he had attacked PERSON .", "The trial of GPE Güney , with other defendants , was conducted before ORG no . CARDINAL between DATE and DATE . On DATE ORG Güney denied his involvement in any of the incidents . At the hearing on DATE , the police officers who had arrested him confirmed the incident report of CARDINAL DATE without adding anything further . On DATE the court issued a request for documents relating to the killing of PERSON to be obtained .", "In its judgment of DATE , the court convicted PERSON of being a member of a separatist organisation , the ORG . The court noted that he had been found trying to escape in the vicinity of the NORP QUANTITY pistol and that , although he later denied it , he had admitted to the police that he was a member of the ORG and that he had participated in the attack on the shop . It noted , however , that pistols belonging to the organisation could have been used by different individuals and that the defendants had stated that the guns had been given to them by other members of the group before the attack . It was found that although ORG Güney had participated in the attack on the shop he could not be held responsible for any other actions . ORG Güney was sentenced to life imprisonment .", "Following the court 's decision , ORG chief public prosecutor opened an investigation into the killing of PERSON ( file no . CARDINAL/CARDINAL ) . By letter dated DATE , the prosecutor instructed the ORG gendarmerie command to report to him DATE concerning any evidence obtained about the GPE murder .", "The contents of the investigation file compiled by the gendarmes and public prosecutor at ORG , as well as the minutes from the hearings in the trial of ORG Güney in ORG no . CARDINAL from DATE , were submitted to ORG . The Government provided the ORG with the judgment of ORG no . CARDINAL of DATE .", "The applicant provided the ORG with a copy of the so - called “ GPE report ” , produced at the request of the Prime Minister by PERSON Kutlu Savaş , Vice - President of ORG within ORG . After receiving the report in DATE , the Prime Minister made it available to the public , although CARDINAL pages and certain annexes were withheld .", "The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report . It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south - east GPE and which tended to confirm the existence of unlawful dealings between political figures , government institutions and clandestine groups .", "NORP The report analyses a series of events , such as murders carried out under orders , the killings of well - known figures or supporters of the NORP and deliberate acts by a group of “ informants ” supposedly serving the ORG , and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that have been formed as a result , particularly in the drug - trafficking sphere . The passages from the report that concern certain matters affecting radical periodicals distributed in the region are reproduced below .", "“ ... In his confession to ORG , ... PERSON ... had stated that PERSON [ ] [ p. CARDINAL ] would say from time to time that he had planned and procured the murder of PERSON [ ] and other partisans from the mafia and the ORG who had been killed in the same way ... The murder of ... PERSON [ ] had also been planned and carried out by PERSON [ p. CARDINAL ] .", "...", "Summary information on the antecedents of PERSON , who was of NORP origin , are set out below [ p. CARDINAL ] .", "...", "As of DATE he was CARDINAL of the financiers of the newspaper PERSON . ... Although it was obvious who PERSON was and what he did , the ORG was unable to cope with him . Because legal remedies were inadequate PERSON was blown up with plastic explosives and when PERSON started to set up a new undertaking , when he was expected to submit to the ORG , ORG decided that he should be killed and that decision was carried out [ p. CARDINAL ] .", "...", "All the relevant ORG bodies were aware of these activities and operations . ... When the characteristics of the individuals killed in the operations in question are examined , the difference between those NORP supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms . ... The sole disagreement we have with what was done relates to the form of the procedure and its results . It has been established that there was regret at the murder of PERSON , even among those who approved of all the incidents . It is said that PERSON was not involved in any armed action , that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake . ( Information about these people is to be found in Appendix CARDINAL [ ] ) . Other journalists have also been murdered [ p. CARDINAL ] [ ] . ”", "The report concludes with numerous recommendations , such as improving co - ordination and communication between the different branches of the security , police and intelligence departments ; identifying and dismissing security - force personnel implicated in illegal activities ; limiting the use of “ confessors ” ; reducing the number of village guards ; terminating the use of ORG outside the south - east region and incorporating it into the police outside that area ; opening investigations into various incidents ; taking steps to suppress gang and drug - smuggling activities ; and recommending that the results of ORG inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken .", "The applicant provided this DATE report into extra - judicial or “ unknown perpetrator ” killings by ORG of ORG . The report referred to CARDINAL unsolved killings , of which CARDINAL involved journalists . It commented on the public lack of confidence in the authorities in south - east GPE on and referred to information that the ORG had a camp in the Batman region where they received political and military training and assistance from the security forces . It concluded that there was a lack of accountability in the region and that some groups with official roles might be implicated in the killings .", "A delegation from the Commission heard evidence from CARDINAL witnesses : the applicant , Captain PERSON , the gendarme in charge of the investigation into the killing of PERSON , Mr PERSON , public prosecutor at ORG who had initiated the proceedings against PERSON , and Mr PERSON GPE , public prosecutor at ORG who had acted in the trial against PERSON .", "Three other witnesses did not appear . PERSON , the night watchman , could not be traced . Mr ORG Fidanboy , the ORG public prosecutor , was due to attend but his flight to GPE was cancelled due to snow . Mr Ziyaeddin LOC , the governor of ORG at the material time , was asked to attend the hearings on DATE and DATE but did not appear . After the first hearing , the Agent of the Government provided the explanation that Mr Akbulut had been taking his DATE leave . Regarding the second hearing , the Agent submitted a letter from PERSON Akbulut which stated that he could not remember being petitioned by PERSON , that the allegations made were false and that he could not attend due to his annual leave .", "The principles and procedures relating to liability for acts against the law may be summarised as follows .", "Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .", "If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .", "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 there should be a prosecution ( LAW ) .", "In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .", "If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect 's status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .", "An appeal to ORG lies against a decision of the council . If a decision not to prosecute is taken , the case is automatically referred to that court .", "By virtue of DATE , paragraph ( i ) , of Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor 's authority .", "If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .", "The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person 's life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender 's superior .", "Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .", "Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :", "“ 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 . ”", "That provision establishes the ORG 's strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people 's lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .", "DATE of Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph CARDINAL above ) , provides :", "“ No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”", "Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant 's guilt ( Article CARDINAL ) .", "However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative ” act or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim 's right to bring an action against the authority on the basis of its joint liability as the official 's employer ( LAW ) ." ]

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[ "The applicant was born in DATE and lived in GPE , GPE . On DATE the applicant died . On CARDINAL DATE Ms PERSON , the late applicant ’s mother ( born on DATE ) , and Mr PERSON , the late applicant ’s son ( born on DATE ) , expressed their wish to pursue the proceedings before the ORG .", "On an unspecified date the police received information that certain “ persons with a criminal propensity ” would be gathering at the grave of a deceased gangster on CARDINAL DATE and that they would be carrying guns , explosives and drugs .", "On DATE a group of police officers came to the cemetery and started checking the identification of the men and women gathered at the said grave . The applicant was among them . He did not have any documents on him . He was placed in a police car together with PERSON and NORP to be taken to the police station by officers PERSON .", "On the way to the police station an altercation occurred between the applicant and the police officers . As a result , the applicant sustained multiple injuries and PERSON had an index finger cut . The police officers and the applicant disputed the circumstances of the incident . It appears that investigation was opened into the incident on DATE and resulted in CARDINAL sets of proceedings .", "The applicant was released from the police custody on DATE . On DATE he was examined by a doctor in a clinic , who noted numerous bruises on his face and alcoholic intoxication .", "On DATE the applicant underwent an X - ray examination which showed that he had sustained a fractured nose .", "On an unspecified date the applicant lodged a complaint about police brutality . With regard to the events of CARDINAL DATE , he submitted that he had been detained by the police at the cemetery . No explanation had been furnished by the police officers as to the reasons for his detention . The applicant had criticised the police ’s actions and the policemen had then forced him into the car together with PERSON and NORP On the way to the police station he had continued to express his dissatisfaction with the police . S. , who had been driving the car , had turned back , had told him to shut up and had hit him in the face , breaking his nose . Then PERSON had stopped the car , and together with PERSON . , the other police officer , had pulled the applicant out of the car and had continued beating him . The applicant had lost consciousness . He had then been taken to the police station and released DATE .", "On DATE the applicant was subjected to another forensic examination . The expert reiterated the earlier findings of the forensic examination of CARDINAL DATE , including the nature and time of the injuries , and added that the applicant had also sustained a fractured nose with a time of the injury similar to that of the other injuries .", "On DATE an investigator from ORG in GPE dismissed the applicant ’s complaint of police brutality as unsubstantiated . In particular , the investigator stated as follows :", "“ In the course of the inquiry [ the applicant ] submitted that on DATE the policemen had beaten him up at the cemetery ... in GPE . As result , he sustained injuries , including the nose fracture . He denied having assaulted the police officer .", "Within the framework of the inquiry in response to the [ applicant ’s ] complaint of police brutality , he underwent a medical examination . It was established that [ the applicant ] sustained bruises on the top right side of the head , bruises on the left part of the forehead , bruises under the left eye and dorsum of the nose , petechiae on the left temple and on the right cheek and a fractured nose . The said injuries resulted from blunt force trauma ...", "[ Policeman ] S. submitted that [ on DATE ] he had been in the taskforce which arrived at the cemetery ... where he had asked [ the applicant ] to proceed to the police car . Neither he nor other policemen had beaten the applicant . [ The applicant ] could have sustained injuries ... when they had pulled him out of the car after his assault . It was possible that [ the applicant ] had caused those injuries himself when resisting the policemen , hitting himself against the car and then falling .", "[ Policeman ] Kh . submitted that [ the applicant ] had refused to get out of the car and had resisted when they pulled him out .", "...", "Having regard to the above , [ I conclude ] that the [ applicant ’s ] complaint of police brutality has not been confirmed . ... The fact that the applicant resisted being pulled out of the car suggests that his injuries could have been caused by his own actions or by the actions of the policemen who restrained him . ”", "The applicant did not appeal against the decision of DATE to the courts", "A criminal investigation was opened against the applicant due to the version of events provided by police officers PERSON . concerning the incident of CARDINAL DATE . According them , in the car the applicant took out a knife and tried to stab PERSON , who was driving the car , in the neck . S. saw the applicant ’s movements in the rear - view mirror and covered his neck with his hands . The applicant cut PERSON ’s right index finger . Kh . grabbed the applicant by the arm . S. stopped the car and got out . He opened the rear door and pulled out the applicant , who had managed to free himself from PERSON . The applicant fell out of the car , hitting his head against the car as he did so , and then landed on his face . The knife fell onto the road . The police officers handcuffed the applicant and took him to the police station .", "NORP The investigator ordered the forensic examination of the applicant . On DATE the forensic expert examined the applicant and noted the following injuries : bruises on the top right side of the head , bruises on the left part of the forehead , bruises under the left eye and top of the nose , and petechiae ( evidence of bleeding under the skin ) on the left temple . The expert considered that the said injuries could have resulted from blunt force trauma occurring no earlier than one day prior to the applicant ’s examination .", "On DATE NORP was questioned by an investigator and stated the following :", "“ As I had drunk wine , I immediately fell asleep in the back seat . Then I was woken up by noise . I saw that the policeman who was in the driver ’s seat had blood on his right hand . I can confirm that when we were leaving the cemetery , that policeman had no injuries on his hands . Nor did I see any blood on him .", "When I was woken up by the noise to see the policeman ’s hand covered with blood , I felt sick and lost consciousness . I can not tell whether the car stopped on the way [ to the police station ] . Nor do I know why the policeman ’s hand was bleeding . I do not know if anyone in the car had a knife on him ...", "I regained consciousness when the car stopped at the police station . ”", "PERSON was also questioned on DATE . He stated the following :", "“ [ At the cemetery ] I was asked to get into [ a police car ] . I complied and got into the back seat . There was a guy wearing sunglasses sitting next to me behind the driver ’s seat ... [ He ] was severely intoxicated . He was mumbling ... On the way [ to the police station ] the guy who was sitting behind the driver moved his right arm towards the driver . In his hand he had an object which resembled a knife . The driver saw the guy ’s movements in the rear - view mirror and leaned forward . After that , the guy made another move with his right arm – [ holding ] the object resembling a knife – towards the driver . The driver , however , covered his neck with his right hand to protect himself and then grabbed the guy by the right hand . Then the driver stopped the car , opened the rear door next to the guy with the sunglasses with his left hand , grabbed the guy ’s right hand – holding a knife – with his left hand and pulled him out of the car . He kicked the guy in the chest . The other policeman ... took out a gun , told the others present in the car to sit and be quiet . Then he got out of the car and helped the driver to handcuff the guy . When the driver pulled the guy out of the car , the guy fell down on the asphalt and hit his face . ”", "On DATE the applicant was charged with assaulting S.", "It appears that on DATE the applicant was remanded in custody pending investigation . He was released on DATE .", "On DATE a court authorised the applicant ’s detention arguing that the applicant might abscond , tamper with evidence or put pressure on witnesses . He remained in custody pending investigation and trial . In particular , the court noted as follows :", "“ The court takes into account the fact that [ the applicant ] has a permanent place of residence . However , he is not officially married and he is unemployed ...", "The [ applicant ’s ] contacts with PERSON and NORP , even though denied by the [ applicant ’s ] lawyer , have been noted by [ the investigators ] . Furthermore , the applicant himself did not deny that he was in contact with them ... Pursuant to the materials in the case - file , PERSON and NORP are the only eye - witnesses of the crime the applicant is charged with . Those persons have registered residence in GPE and GPE . They are unemployed and failed to appear [ for questioning ] . The court considers that , if released , the applicant might influence those witnesses .", "...", "The court takes into account the information furnished by [ the police department ] concerning the applicant ’s connection with [ known gangsters ] , that he is a member of an organised criminal group ... Having regard to the above , the court considers that ... the applicant might continue his criminal activities . ”", "The investigating officer commissioned several expert evaluations , including that of the knife found at the alleged crime scene . As it turned out , the quality of the fingerprints on the knife was not good enough to determine their origin . The investigator also questioned the applicant , the police officers involved , the paramedic who had attended to LOC , and PERSON mother .", "On DATE the investigator summoned PERSON and NORP to appear for questioning . Neither PERSON nor NORP were found at their last known addresses . The police questioned their neighbours and family , who stated that they had no knowledge of PERSON and NORP ’s whereabouts .", "On DATE the forensic expert prepared another report on the basis of the prior medical documentation , including the results of the medical examination of CARDINAL DATE , the forensic report of CARDINAL DATE , GPE examinations of CARDINAL June and DATE , and the applicant ’s medical file . The expert concluded that the applicant might have sustained a fractured nose DATE prior to the date of the first X - ray examination of DATE . As regards the origin of the injury , the expert reiterated the earlier forensic findings .", "On DATE the investigator forwarded the applicant ’s case file to the court .", "During the trial the applicant pleaded not guilty . He denied assaulting PERSON or having had a knife .", "On DATE the applicant unsuccessfully asked the court to admit as evidence written statements made by PERSON and NORP which corroborated his version of the events of CARDINAL DATE . In particular , the court indicated as follows :", "“ Pursuant to the [ rules of criminal procedure ] , [ such ] statements can not be considered as evidence . Furthermore , [ PERSON and NORP ’s ] signatures are not duly certified , which fact may give rise to doubts as to whether the statements were made by PERSON and NORP and as to their admissibility as evidence . If the defence can obtain NORP and PERSON ’s attendance in court for questioning or indicate their whereabouts to the court , the court , if requested so by the parties , may summon and question those persons . ”", "On DATE the ORG found the applicant guilty as charged and sentenced him to DATE imprisonment . In particular , the court noted as follows :", "“ ... the fact that the [ applicant ] has committed the crime ... is confirmed by the following evidence :", "By the testimony given by [ police officer ] S. ... ;", "...", "By the testimony given by [ police officer ] Kh . ... ;", "...", "By the testimony of [ Police officer ] ORG . , who testified that on the way from the cemetery to [ the police station ] he was in the car that followed the one PERSON was driving . ... When PERSON stopped his car , [ Sh . ] saw PERSON , whose right hand was bleeding , and PERSON . , who ran out of the car . They opened the rear door of the car and pulled [ the applicant ] out . [ The applicant ] had a knife in his right hand . The [ police officers ] knocked the knife out of his hand , put him on the ground and handcuffed him . Then PERSON wrapped his injured finger with a handkerchief . TIME an ambulance appeared and provided medical assistance to S.", "...", "The crime scene investigation report notes that ... inside the [ police car ] , CARDINAL brown stains were discovered on the left rear door . PERSON spots resembling blood ... were also discovered inside the car on the steering wheel , on the interior of the window pane next to the driver ’s seat , on the door near the driver ’s seat , [ and on the ] windscreen wiper stalk near the steering wheel . A handkerchief covered with brown stains was found on the floor of the car , on the left side near the driver ’s seat . A flick knife ... was found next to the left of the car ...", "...", "The report on the findings of the biological forensic expert evaluation ... of DATE states that blood , which could have belonged to PERSON , was found on the flick knife and the handkerchief and in CARDINAL samples taken from the asphalt next to the police car , the car ’s steering wheel , the handle in the car and the [ applicant ’s ] right hand . It is possible that the samples also contain the [ applicant ’s ] blood provided that he sustained injuries causing bleeding , but it is ruled out that the blood belonged only to him ...", "Further to defence counsel ’s request , witness ORG , [ R. ’s mother ] , testified in court .", "...", "She learnt from her son , NORP , that on the way to the police station [ the applicant ] continued to “ ask for trouble ” in the car . The policemen advised him to shut up and then CARDINAL of them punched him in the face with his fist . He started bleeding . The policemen pulled him out of the car and continued beating him .", "Regard being had to all the evidence examined in the course of the proceedings , the court views witness ORG ’s testimony critically ... Her testimony is refuted not only by the testimony given by ORG . , but also by data contained in the crime scene investigation report and the findings of the biological forensic expert report .", "According to the testimony given by PERSON . , and [ the applicant ] , the latter was seated in the back seat of the car . [ The applicant ] and ... PERSON alleged that the [ applicant ] bled severely after the policeman hit him in the face .", "However , this is not confirmed by the crime scene investigation report , which shows that there was no blood discovered in the seat occupied by the [ applicant ] in the car .", "Furthermore , according to the above - mentioned report and the findings of the biological forensic expert evaluation report , the blood found both in the car and next to it , belonged to [ S. ] and possibly to [ the applicant ] . It did not belong only to [ the applicant ] .", "Having regard to the data contained in the crime scene investigation and the forensics reports , it is not possible to accept as substantiated the applicant ’s allegations about being beaten in police custody ...", "According to the testimony given by PERSON . , the applicant sustained the injuries as a result of the police efforts to put a stop to his unlawful actions . He hit his head and face against the asphalt and the frame of the car when [ the policemen ] pulled him out of the car . This is confirmed by the findings of the medical forensic report of CARDINAL DATE confirming that [ the applicant ] could have sustained the injuries as a result of contact with solid blunt objects within the period in question .", "...", "The court finds [ the applicant ] guilty [ beyond reasonable doubt ] . ”", "On DATE ORG upheld the applicant ’s conviction on appeal . As regards the trial court ’s failure to question PERSON and NORP , ORG indicated as follows :", "“ According to the materials of the case file , PERSON and NORP were detained together with [ the applicant ] and placed in the same police car . They made written statements [ about the incident ] . However , they were not questioned , pursuant to the rules of criminal procedure . During the investigation and at trial it was impossible to establish their whereabouts .", "According to ORG ’s testimony , NORP is her son . He left home on CARDINAL DATE . Since then , he has showed up only once – in DATE . His whereabouts are not known to her .", "As regards her son ’s account of the events of [ CARDINAL DATE ] , PERSON gave contradictory testimony . First , she claimed that her son had seen that [ the applicant ] had been beaten up and covered with blood . He had not remembered , however , what had happened in the car because he had been asleep there after drinking . Then she asserted that [ the applicant ] had been beaten up by the policemen in the car and then next to it . Under such circumstances , the [ trial ] court had reasons to critically assess that witness ’s testimony .", "The court ’s decision not to admit as evidence PERSON and PERSON ’s written statements submitted by [ the applicant ’s ] counsel has also been justified . ”", "On an unspecified date the applicant sued ORG for damages resulting from his injuries . On DATE the ORG of GPE dismissed the claim without examination of the merits for the applicant ’s failure to comply with certain procedural requirements for lodging civil claims . It appears that the applicant failed to comply with those requirements and on DATE the statement of claim was returned to him . On DATE ORG upheld the decision of DATE on appeal .", "On an unspecified date the applicant resubmitted his claims . On CARDINAL DATE ORG dismissed them . The applicant ’s representative was present in court . On DATE ORG upheld the judgment on appeal .", "On DATE the applicant was transferred to correctional colony no . CARDINAL in GPE . On DATE he was placed in a prison hospital . He died on DATE . The autopsy showed tuberculosis and AIDS as causes of death .", "On DATE the case file containing the applicant ’s complaint of police brutality was destroyed after the expiry of the statutory period for its storage ." ]

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[ "3" ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant , then DATE , was convicted of the murder of his grandmother on DATE . At his trial , he had unsuccessfully raised the defence of diminished responsibility , based on the fact that he had been addicted to glue sniffing for DATE . He was sentenced to detention at Her ORG Pleasure pursuant to section CARDINAL(CARDINAL ) of ORG . His tariff ( the portion of sentence representing punishment and deterrence ) was set at DATE .", "On DATE , the applicant , aged DATE , was released on life licence .", "No concerns arose with his supervising probation officer until in DATE the applicant told her that he had been having a sexual relationship with GPE , a DATE youth . PERSON was regarded as a vulnerable youth and had been provided with the support of a social worker following his involvement in a theft offence .", "NORP In DATE , the applicant was arrested on suspicion of being in possession of prohibited drugs ( namely , ecstasy tablets ) . He was taken to a police station and released on bail . His probation officer sent him a registered letter requesting him to meet her on DATE . He did not attend the meeting or make any contact by telephone until DATE , when he agreed to meet her DATE .", "On DATE , however , the applicant made a suicide attempt , taking CARDINAL paracetamol tablets . He was discharged from hospital on DATE . He met his probation officer on DATE and agreed to meet her again on DATE . He failed to keep the appointment , telephoning to say that he had overslept .", "On DATE , he met with his probation officer and PERSON from ORG . During this meeting , the applicant admitted that he had been using drugs ( ORG , ecstasy and cannabis ) since his release from prison and that his use of ecstasy was beyond his control . He obtained the drugs from friends or acquaintances who expected him to do favours for them in return . He stated that he was no longer having a sexual relationship with PERSON but that PERSON had been staying with him at his flat . He met with his probation officer again on DATE .", "In her report of DATE , the probation officer stated :", "“ Until DATE [ the applicant ’s ] response to his ORG , in terms of reporting for appointments , had been exemplary and he appeared to have made good progress in settling into the community , via stable employment and the allocation of his own council flat . It would appear however , that his resignation from his job in DATE significantly impacted on the sense of structure and purpose he then had DATE to day life which he now admits he has since found difficult to attain . Until recently , his presentation during our meetings gave no cause for concern . However , he now reports that he had been less than honest about the changes in his functioning as he feared a recall to prison , particularly given his initial stability and progress . In addition to his now admitted drug use , it would appear that [ the applicant ’s ] anxieties about his future are limited to : ( a ) his previous unsafe sexual practices and the possible consequences of this on his health ; ( b ) his wish to have a long - term and supportive monogamous relationship ; ( c ) his growing sense of loneliness and isolation despite a wide social network ... and ( d ) a sense of stagnation about the course of his life , particularly in finding alternative employment to date , despite extensive efforts . These issues , alongside [ the applicant ’s ] behaviour over DATE , clearly indicate that he is vulnerable and that close monitoring of his situation at this time is crucial . ”", "She concluded that he posed a risk to himself and that there are “ no indications that he is a risk to the public in terms of dangerousness ” .", "On DATE , the Assistant Chief Probation Officer prepared a report that stated :", "“ [ The applicant ] had demonstrated , and recently admitted , that his behaviour has been both self - destructive ( through drug misuse , relationships with others and a suicide attempt ) and that he posed a risk to a minor . ... The area of risk to the public stems from his relationship with a minor . ”", "She noted that there had been an openness about long - standing problems and some degree of insight coming out of the crisis of DATE that suggested that the applicant could work on them . She concluded that a final recommendation was difficult given the area of risk to himself and proposed that a psychiatric report be prepared concerning his current level of functioning and future prognosis and specifically an assessment of self - harm .", "On DATE , ORG considered the applicant ’s case and recommended his recall to prison .", "On DATE , the Secretary of ORG accepted the recommendation , revoked the applicant ’s licence and recalled him to prison . He was informed that the reasons for his recall were", "“ CARDINAL . You have recently disclosed that you have been misusing drugs since your release in DATE , and following your arrest in DATE ] there is also a possibility that you will be convicted of the possession of , and intent to supply , illegal drugs .", "You have been associating with a minor and you have admitted that your relationship was of a sexual nature .", "You have breached your licence conditions by not maintaining contact with your supervising officer in accordance with her instructions and by not being open and honest with her .", "You attempted suicide .", "ORG and the Secretary of ORG took the view that for your own safety and the safety of others it was inappropriate to allow you to remain at liberty . ”", "On DATE and CARDINAL DATE , the applicant submitted written representations to ORG concerning his recall to prison . He admitted inter alia that before his arrest in DATE he had been taking CARDINAL ecstasy tablets a day and that he had not been honest about his drugs abuse with his probation officer . He stated that his relationship with PERSON was now platonic and that he had terminated sexual contacts on discovering that he was DATE . He stated that he had not been involved in drug dealing and hoped to be able to deal with his drug problem , now it was out in the open , with the assistance of the probation service within the community .", "On DATE , ORG considered the applicant ’s case . There was no oral hearing . It decided :", "“ The index offence involved the brutal murder of [ the applicant ’s ] grandmother , when he was DATE . After constructive progress in prison , which included work on CARDINAL of the key risk factors - drug abuse - he was released on licence in DATE . In DATE , [ the applicant ] was recalled to prison for drug misuse , including the possibility that he will be convicted of intention to supply , having a sexual association with a minor , breach of licence conditions and attempted suicide .", "The ORG has considered all the relevant reports and taken careful note of [ the applicant ’s ] representations ... In spite of the considerable attempts by ORG to enforce [ the applicant ’s ] licence , his behaviour in DATE demonstrates that he is at risk not just to himself but to other members of the community . Irrespective of whether [ the applicant ] is convicted of an offence , he has admitted extensive illegal drug abuse and the concerns about his sexual involvement with a minor were sufficient to merit a case conference . Furthermore , the incidents of self harm indicate the need for thorough psychiatric assessment . It is in the interests of public safety and [ the applicant ’s ] longer term well being that the recall be confirmed . A full assessment of the factors underlying the breakdown of the licence needs to be made , together with plans to tackle what appears to be deep rooted problems of drug abuse and social isolation .", "The ORG noted that [ the applicant ] has shown a willingness to co - operate with Probation and has demonstrated an ability to comply with the terms of his licence . DATE should be sufficient time for him to be assessed to stabilise and to tackle the problems identified . ”", "On DATE , the applicant was informed that ORG had considered his recall on the papers and upheld the decision to revoke his life licence . He was told that he would be informed of the date of the next review once ORG had made a decision regarding the case against him for drugs possession .", "On DATE , the applicant was informed that ORG had decided not to prosecute him for the alleged drugs offence and that his case would be reviewed by ORG in DATE .", "A number of reports were prepared to assist ORG in the coming review .", "In his report of DATE , PERSON , the Principal Case Officer stated :", "“ [ The applicant ’s ] misuse of illegal substances for DATE remains a major risk concern . However he acknowledges this and had taken steps to challenge this issue . If he can display the same harmony in the community as he has in the custodial setting there is no purpose served by his retention in custody . However constructive supervision and support will initially be required . ”", "His probation officer stated in a report of CARDINAL DATE :", "“ ... provided that he is given the necessary support and receives sustained input to encourage his current anti - drugs attitude and drug - free status , he can safely be released into the community . ”", "In a report of DATE , a forensic psychologist noted that “ the major risk factor contributing to his committing the original offence ... was drugs abuse ” .", "In DATE , the applicant received his parole dossier . On seeking legal advice prior to his ORG review , the applicant was advised that ORG had failed to apply the procedure applicable to his recall under the interim arrangements implemented pending the entry into force of LAW DATE . He should under those administrative provisions have received an oral hearing concerning his recall , though this was not a statutory entitlement .", "An application for legal aid for bringing judicial review proceedings was made on DATE and legal aid granted on DATE .", "On DATE , ORG informed the applicant :", "“ We have now looked into the circumstances surrounding the revocation of [ the applicant ’s ] life licence in DATE . While we accept that , due to an oversight , the procedures did not follow the interim arrangements for dealing with ORG detainees , there is , in our view , no question that [ the applicant ’s ] recall to prison was or is in any way unlawful or invalid ...", "Under the circumstances , we see no reason or justification for any declaration or order directing his release or authorising compensation . ”", "On DATE , the applicant applied for judicial review . Leave was granted on DATE . The full hearing of his case was not scheduled to take place until DATE .", "An oral hearing was held by ORG on DATE , at which the applicant was present and represented , following which it directed the applicant ’s release . In its decision it stated :", "“ In reaching its decision the panel took account of the following :", "( i ) the absence of any violence or threat of violence since the index offence either in prison or when on licence for DATE ;", "( ii ) your acceptance of an inappropriate lifestyle when previously released on licence and your frank acknowledgement of your drug abuse during that time ;", "( iii ) the fact that since recall you have been drug free ;", "( iv ) reports of your increased maturity and strong motivation to keep clear of drugs and the drug scene in future ;", "( v ) the greater relevance of the proposed community based drugs rehabilitation and relapse prevention programme that is available through drug link ;", "( vi ) the agreement of ORG to provide an approved probation hostel place for DATE to assist in your reintroduction to the community and the help you will receive in obtaining employment ;", "( vii ) your acceptance of the need to be totally honest with your supervising probation officer in future ... ”", "The applicant was released on CARDINAL DATE .", "In advice dated DATE , counsel advised that since he had been released no further purpose could be served by continuing with the judicial review application . There was no prospect of obtaining any damages for the period spent in detention after recall .", "On DATE , the judicial review proceedings were ended by a consent order .", "On DATE , the applicant was again recalled to prison , following his arrest for possession of a Class A drug ( ecstasy ) and a Class B drug ( cannabis ) . His recall was recommended by ORG and he continues to be detained in prison on the recommendation of ORG following periodic reviews of his case . He is currently detained in open prison and his next review is scheduled for DATE .", "English law imposes a mandatory sentence for the offence of murder in respect of offenders under the age of CARDINAL known as detention during Her Majesty ’s Pleasure ( section CARDINAL(CARDINAL ) of ORG ) ; in respect of offenders between the age of DATE , custody for life ( section CARDINAL(CARDINAL ) of LAW DATE ) , and in respect of offenders aged CARDINAL and over , life imprisonment ( section CARDINAL(CARDINAL ) of the Murder ( Abolition of Death Penalty ) Act DATE ) .", "Mandatory life sentences are fixed by law , in contrast to discretionary life sentences which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences ( e.g. manslaughter , rape or robbery ) . The principles underlying the imposition of a discretionary life sentence are :", "( i ) that the offence is grave , and", "( ii ) that there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when the danger will subside .", "Discretionary life sentences are indeterminate in order that “ the prisoner ’s progress may be monitored ... so that he will be kept in custody so long as public safety may be jeopardised by his being let loose at large ” ( R v. PERSON [ DATE ] CARDINAL Cr . App . Rep. CARDINAL , p. CARDINAL ) .", "NORP The notion of detention during Her Majesty ’s Pleasure had its origins in an Act of DATE for “ the safe custody of insane persons charged with offence ” . Section CARDINAL provided that defendants acquitted of a charge of murder , treason or felony on the grounds of insanity at the time of the offence were to be detained in “ strict custody until His Majesty ’s pleasure ” and described their custody as being “ during His [ Majesty ’s ] pleasure ” .", "In DATE , detention during His LOC pleasure was introduced in respect of offenders aged DATE and then extended to cover those under DATE . The provision in force at present is Section CARDINAL(CARDINAL ) of ORG as amended ) which provides :", "“ A person convicted of an offence who appears to the ORG to have been under DATE at the time the offence was committed shall not , if he is convicted of murder , be sentenced to imprisonment for life nor shall sentence of death be pronounced on or recorded against any such person but in lieu thereof the court shall ... sentence him to be detained during Her ORG ’s pleasure and , if so sentenced , he shall be liable to be detained in such a place and under such conditions as the Secretary of ORG may direct . ”", "In the case of ex parte PERSON on DATE , PERSON in ORG held as follows in respect of detention during Her ORG Pleasure :", "“ At the time of sentencing , the detention orders under LAW were mandatory . It is indeed the statutory equivalent for young persons of the mandatory life sentence for murder . But the sentence itself is closer in substance to the discretionary sentence of which part is punitive ( retribution and deterrence ) and the balance justified only by the interests of public safety when the test of dangerousness is satisfied . The fact that the mandatory life prisoner may be given similar rights as regards release on licence does not alter the fact that the mandatory life sentence is justifiable as punishment for the whole of its period : see NORP v. Secretary of ORG , ex . p. Doody & others [ DATE ] Q.B. CARDINAL and GPE v. GPE ( DATE ) . The order for detention under section DATE is by its terms both discretionary and indeterminate : it provides for detention ‘ during Her Majesty ’s pleasure’ . ( Section CARDINAL(CARDINAL ) which expressly authorised the Secretary of ORG to discharge the detainee on licence ‘ at any time’ was repealed by ORG provisions of LAW DATE , but this does not , in my judgment , alter the nature of the sentence in any material respect . ) I would decide the present case on the narrow ground that , notwithstanding ORG practice , the applicant should be regarded as equivalent to a discretionary life prisoner for the purpose of deciding whether ORG rather than ORG governs his case . ”", "The Divisional Court accordingly held that the applicant in that case , who was detained during Her Majesty ’s pleasure , should be afforded the same opportunity , as would be given a discretionary life prisoner , to see the material before ORG when it decided upon whether he should be released after his recall to prison on revocation of his licence .", "Persons sentenced to mandatory and discretionary life imprisonment , custody for life and those detained during Her ORG have a “ tariff ” set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence . After the expiry of the tariff , the prisoner becomes eligible for release on licence . Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in DATE , in particular , following the coming into force on DATE of LAW DATE .", "Under the relevant provisions of LAW DATE , the regime applying to the release of discretionary and mandatory life prisoners was the same . Section CARDINAL(CARDINAL ) of the CARDINAL Act provided inter alia that :", "“ The Secretary of ORG may , if recommended to do so by ORG , release on licence a person serving a sentence of imprisonment for life or custody for life or a person detained under LAW DATE ( young offenders convicted of grave crimes ) , but shall not do so in the case of a person sentenced to imprisonment for life or custody for life or to detention during Her Majesty ’s pleasure or for life except after consultation with the Lord Chief Justice of GPE and the trial judge if available . ”", "The DATE Act instituted changes to the regime applicable to the release of discretionary life prisoners following the decision of ORG in the case of GPE , PERSON and PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) .", "Pursuant to section CARDINAL of the CARDINAL Act , after the tariff expired , the prisoner could require the Secretary of ORG to refer his case to ORG which had the power to order his release if it was satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined . Pursuant to ORG DATE which came into force on DATE , a prisoner was entitled to an oral hearing , to disclosure of all evidence before ORG and to legal representation . He was also entitled to call witnesses on his behalf and to cross - examine those who have written reports about him .", "The regime applicable to mandatory life prisoners and prisoners detained during Her ORG Pleasure was , however , preserved within LAW . LAW of the DATE Act provided insofar as relevant :", "“ ( CARDINAL ) NORP If recommended to do so by ORG , the Secretary of ORG may , after consultation with the Lord Chief Justice together with the trial judge if available , release on licence a life prisoner who is not a discretionary life prisoner . ”", "The criterion for determining whether re - detention was justified was that of dangerousness , meaning a consideration of whether the offence constitutes an unacceptable risk of physical danger to the life or limb of the public ( see R v. Secretary of ORG for ORG , ex parte PERSON , unreported , transcript pp . DATE ; PERSON v. the GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL-I , at § CARDINAL ) .", "Pursuant to section CARDINAL of the DATE Act , the Secretary of ORG could , on recommendation of ORG , revoke the licence of such a life prisoner who had been released on licence . In such circumstances , the prisoner had the right to make written representations with respect to his recall and for a review to be carried out by ORG . Where the ORG then recommended release on licence , the Secretary of ORG was under a duty to give effect to that recommendation ( section CARDINAL(CARDINAL ) ) .", "In light of the judgments of the ORG in the cases of PERSON v. the GPE ( cited above , p. CARDINAL ) , and PERSON v. the GPE ( judgment of DATE , Reports CARDINAL , p. CARDINAL ) , the Secretary of ORG announced , on DATE , the introduction of interim measures taking effect from DATE which changed the procedure under which the cases of prisoners detained during Her ORG were reviewed by ORG .", "Pursuant to these measures , the review took the form of an oral hearing at which prisoners were entitled to legal representation and to examine and cross - examine witnesses . Prisoners also normally received full disclosure of all material relevant to the question of whether they should be released prior to the hearing . Pending amendment of CARDINAL ) of the CARDINAL LAW , ORG did not , however , have power to direct the release of any prisoner ( save in circumstances provided for in section CARDINAL of the DATE Act above ) .", "On DATE , ORG came into force , giving statutory effect to the interim arrangements . ORG ) further provided that the Secretary of ORG was under a duty to release a prisoner detained during Her ORG where so directed by ORG ." ]

[ "5" ]

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

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[ "14", "5" ]

[ "5-1" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON .", "On an unspecified date the applicant ’s mother was granted , by way of an administrative decision , a protected tenancy of an apartment located in a house owned by the municipality and subject to the compulsory management of the local housing administration . The applicant lived in this apartment since he his birth .", "In DATE his brother and father , who apparently had been in conflict with the applicant , instituted proceedings to have the applicant ’s name deleted from the local register of inhabitants on the ground that he did not live in the apartment . On an unspecified date the housing administration refused their request .", "On DATE the applicant ’s mother died . The applicant requested that the housing administration conclude a tenancy agreement with him as her mother ’s legal successor in respect of the tenancy contract , as provided for by law . This was refused by a letter of DATE on the ground that the applicant did not comply with the requirement for such a succession set out by LAW , since he did not live in the apartment . At the same time the housing administration instituted proceedings to delete the applicant ’s registration from the list of inhabitants of the building . On DATE the administration reiterated their refusal to conclude a tenancy agreement with him .", "On DATE the Mayor of PERSON gave a decision striking the applicant ’s name from the register of inhabitants of the building concerned , considering that it transpired from the evidence that he had not been living there . On DATE this decision was upheld .", "On DATE the applicant brought a civil action against the municipality under LAW , regulating conditions of succession to the right of lease of apartments , including protected tenancies , claiming a declaration that he was a legal successor of the former tenant of the apartment , his mother .", "On DATE the ORG , by way of a judgment in default , allowed his claim . The housing administration lodged an objection against this judgment .", "On DATE ORG , having reconsidered the case , upheld the judgment and confirmed that the applicant was a successor in respect of the tenancy contract .", "On DATE the applicant requested ORG to take steps to make the judgment operational by concluding a tenancy agreement with him .", "In a letter of DATE the municipality stated the following :", "“ In reply to your letter and with reference to the attached judgment of DATE , I should inform you that under that judgment you became your mother ’s successor in respect of the tenancy contract , but that it is impossible to conclude such a contract with you .", "This is so because an internal enquiry showed that you had not been living in that apartment on a permanent basis . This has already resulted in the decision of the Mayor striking your name out of the list of inhabitants of the building .", "Consequently , pursuant to LAW . of LAW of DATE on the protection of the rights of tenants , housing resources of municipalities and amendments to LAW , the municipal office hereby gives DATE notice in respect of the contract which you obtained under the judgment referred to above , the contract expiring on DATE . The factual basis for the termination of contract is the fact that you have not been living in this apartment for a period longer then DATE . “", "The applicant appealed against this letter , the legal status of which was uncertain , in that it was not clear whether it was an administrative decision ; he complained that the municipality had refused to comply with the final judgment of the civil court .", "On DATE ORG of the Wrocław Region informed the applicant that it was not competent in housing matters , and that the letter complained of was not an administrative decision in any event , against which an appeal to a higher authority would lie .", "On DATE the applicant lodged an action with ORG in which he sought a declaration under LAW that a contractual tenancy relationship existed between him and the municipal office . These proceedings are pending .", "DATE on , housing matters were subject to a high degree of state control under successive provisions of housing legislation . The most important characteristic of this system , a so called “ special lease scheme ” , was that a tenancy was created by means of an administrative decision and not by a civil law contract between the landlord and the tenant . Under these protected tenancies , the tenants paid controlled rent and the owners could not terminate lease by giving notice to the tenant . The special lease scheme was also applicable to houses owned , until DATE , by ORG , and after the reform of the local administration , by the municipalities .", "Although “ the special lease scheme ” was abolished under LAW , the system of protected tenancy is still applicable to tenants who were allocated their apartments on the basis of previous administrative decisions .", "Under transitional provisions of the DATE Law , protected tenancies which had originated in administrative decisions given in the past under the special lease scheme were to be regarded as contractual leases concluded for an indefinite period and governed by the provisions of the DATE Law . LAW maintained , albeit with slight modifications of wording , the rules concerning the protection of tenants against termination of leases continued on the basis of previous administrative decisions and the right of succession to a lease .", "Until the entry into force of the DATE Act the right to succession of a protected tenancy was regulated by LAW , which provided that in case of the death of a tenant , his descendants had a right of succession in respect of the tenancy , if they lived in the same apartment at the time of the original tenant ’s death .", "The DATE Act repealed this provision and replaced it by LAW , which read :", "“ CARDINAL . In case of the death of a tenant and on condition that they lived in the household of a tenant until his death , his descendants , ascendants , adult siblings , adoptive parents or adopted children and a person who has lived with a tenant in de facto marital cohabitation , shall succeed to the tenancy agreement and acquire the tenant ’s rights and obligations connected with [ the lease of ] the flat , unless they relinquish that right to the landlord . This provision does not apply to persons who , when the [ original ] tenant died , had title to another residential dwelling .", "NORP In cases where there is no successor to the tenancy agreement , or where the successors have relinquished their right , the lease shall expire . ”", "In DATE parliament adopted a new law governing housing matters and relations between landlords and tenants . LAW of DATE on the protection of the rights of tenants , housing resources of municipalities and amendments to LAW ( LOC o ochronie praw lokatorów , mieszkaniowym zasobie gminy i o zmianie LOC cywilnego ) ( “ the DATE LAW ) entered into force on DATE . It repealed LAW and reinserted LAW into LAW .", "Under LAW ( CARDINAL ) CARDINAL of that Act , the owner of apartment can give DATE notice on the tenancy contract if the tenant has not been living in that apartment for DATE .", "The obligation for NORP citizens residing in GPE to register their permanent address in a municipality ’s register of inhabitants is stipulated in LAW ( LOC o ewidencji ludności i dowodach osobistych z CARDINAL.CARDINAL.CARDINAL ) .", "Under LAW , the notion of “ living permanently ” implies residing at a given address with the intention of making it the principal centre of one ’s vital interests . LAW provided that : “ a person applying to have their permanent or temporary residence registered shall submit a certificate to the effect that they are entitled to stay in the apartment ( or other dwelling LOC ) concerned . ” On DATE the NORP Constitutional Court declared Article CARDINAL ( CARDINAL ) of LAW unconstitutional and , subsequently , this provision was repealed with effect from DATE . As a result of the judgment of ORG , a certificate to the effect that a person is entitled DATE within the civil law sense of the term - to stay in an apartment is no longer a prerequisite for having his permanent or temporary residence registered ." ]

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[ "The first applicant is PERSON . He was born in DATE and is represented by Mr PERSON , a solicitor with ORG , a non - governmental civil liberties organisation based GPE . The second applicant is PERSON . She is represented by PERSON of Bindmans Solicitors , GPE . Both are NORP nationals and live in GPE .", "s , may be summarised as follows .", "s", "On DATE the first applicant participated in a demonstration , which he had organised , in GPE opposite FAC , a “ designated area ” within the meaning of section CARDINAL of the Serious Organised Crime and Police Act CARDINAL ( “ the DATE LAW ) . The second applicant also participated in it .", "Prior to DATE the first applicant had informed the police orally that the demonstration was going to be held , he gave the time , date and place of the demonstration and ( politely ) informed the police that an authorisation would not be sought . He had also posted information DATE before the demonstration on a website confirming that it was not authorised so that the risk of arrest was high and that , in fact , he had been informed by the police that he would be arrested under LAW . The second applicant was also aware prior to the relevant date that authorisation had not been sought so that demonstrating in that area would be an offence . ORG later noted that the demonstration was just as much a demonstration against the requirement for an authorisation under LAW as against the NORP conflict . ORG ( in its case stated to ORG in the first applicant ’s case ) noted police evidence to the effect that , had authorisation been sought , no conditions would have attached to it .", "At the demonstration , the first applicant read out names of NORP citizens killed in the NORP conflict and the second applicant read out names of NORP soldiers killed in that conflict . Placards were displayed about the GPE conflict and a bell was rung at regular intervals . The applicants behaved in a peaceful and orderly manner throughout . The police attended at the demonstration and warned the applicants that they would be arrested and charged if they continued given the lack of an authorisation . The police then withdrew to enable the applicants to stop the demonstration . They chose to continue .", "The first and second applicants were therefore arrested , detained in the police station for a number of TIME and charged : the first applicant for having organised an unauthorised demonstration in a designated area contrary to section CARDINAL ) of LAW and the second for having participated in the same demonstration contrary to section CARDINAL ( CARDINAL ) of that Act . It appears that both were granted police bail : the documents submitted do not indicate that bail was subject to any conditions ( apart from appearing before ORG on the relevant date ) .", "Before ORG the applicants argued that section CARDINAL(CARDINAL ) ( a ) and ( b ) of the DATE Act were not compatible with Articles CARDINAL and CARDINAL of the Convention . Unless those provisions were interpreted compatibly with those ORG , their convictions would be unlawful . ORG found that the relevant sections were necessary and proportionate restrictions of the applicant ’s rights under LAW . In any event , additional words could not be read into the sections as that would run counter to legislative intent . The convictions would not therefore be unlawful under LAW . The applicants were convicted as charged on DATE and DATE , respectively . The first applicant was sentenced to a fine of QUANTITY ( GBP ) and ordered to contribute to prosecution costs in the sum of GBPCARDINAL and the second applicant was sentenced to a conditional discharge of DATE and to contribute to costs in the sum of GBPCARDINAL .", "The applicants appealed by way of a case stated to ORG . They conceded that section CARDINAL ) and ( b ) was not incompatible with Articles CARDINAL and CARDINAL of the Convention but argued that the relevant State actors ( the police , ORG and the courts ) should have been required to justify the necessity to act ( arrest , prosecute and convict ) on the facts of each individual case . Accordingly , those authorities should have looked not merely at whether there was an authorisation but also at the later peaceful conduct of the actual demonstration . Since ORG had not considered the justification for their conviction along those lines , their arrest , prosecution and conviction were contrary to their Convention rights .", "By judgment dated DATE , ORG dismissed the ORG appeals ( and the appeals of CARDINAL others , PERSON and Others v Director of Public Prosecutions [ CARDINAL EWHC CARDINAL ( Admin ) ) . It noted that the only charge against the applicants was demonstrating without an authorisation . ORG considered that the reasoning in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) was compelling . Nothing in the other Convention or domestic jurisprudence opened to ORG undermined that reasoning . Those Convention and domestic cases rather raised various public order , safety and security issues ( NORP “ FAC für das PERSON ” v. GPE , DATE , Series A no . CARDINAL ; PERSON v. GPE , DATE , Series A no . CARDINAL ; and PERSON and ORG v. GPE , ORG CARDINAL and CARDINAL , ECHR CARDINALIX , as well as PERSON v. ORG , no . CARDINAL/CARDINAL , Commission decision of DATE , CARDINAL Decisions and Reports ( “ GPE ” ) , CARDINAL ; and PERSON v. GPE , No . CARDINAL/CARDINAL , Commission Decision of DATE , PERCENT DATE ) . Accordingly , once it was accepted that the section requiring the authorisation was compatible with LAW ( as the applicants did ) , ORG was not required to look at the nature of the activity actually pursued thereafter without authorisation in order to determine whether a sanction should be imposed . Once an authorisation procedure was LAW , ORG was entitled to impose sanctions for a failure to obtain authorisations . ORG refused to certify a point of law of general public importance for ORG .", "B. Relevant domestic law and practice", "Section CARDINAL of the DATE Act is entitled “ Demonstrating without authorisation in designated area ” and reads as follows :", "“ ( CARDINAL ) Any person who–", "( a ) organises a demonstration in a public place in the designated area , or", "( b ) takes part in a demonstration in a public place in the designated area , or", "( c ) carries on a demonstration by himself in a public place in the designated area ,", "is guilty of an offence if , when the demonstration starts , authorisation for the demonstration has not been given under section CARDINAL(CARDINAL ) .", "( CARDINAL ) It is a defence for a person accused of an offence under subsection ( CARDINAL ) to show that he reasonably believed that authorisation had been given .", "( CARDINAL ) Subsection ( CARDINAL ) does not apply if the demonstration is–", "( a ) a public procession of which notice is required to be given under ... LAW ( c. CARDINAL ) , or of which ... notice is not required to be given , or", "( b ) a public procession for the purposes of LAW of [ LAW ] .", "...", "( CARDINAL ) In this section and in sections CARDINAL to CARDINAL–", "( a ) “ the designated area ” means the area specified in an order under section CARDINAL ,", "( b ) “ public place ” means any highway or any place to which at the material time the public or any section of the public has access , on payment or otherwise , as of right or by virtue of express or implied permission ,", "( c ) references to any person organising a demonstration include a person participating in its organisation ,", "( d ) references to any person organising a demonstration do not include a person carrying on a demonstration by himself ,", "( e ) references to any person or persons taking part in a demonstration ( except in subsection ( CARDINAL ) of this section ) include a person carrying on a demonstration by himself . ”", "Section CARDINAL is entitled “ Notice of demonstrations in designated area ” and reads as follows :", "“ ( CARDINAL ) A person seeking authorisation for a demonstration in the designated area must give written notice to that effect to the Commissioner of Police of the LOC ( referred to in this section and section CARDINAL as \" the Commissioner \" ) .", "( CARDINAL ) The notice must be given–", "( a ) if reasonably practicable , not CARDINAL clear days before DATE on which the demonstration is to start , or", "( b ) if that is not reasonably practicable , then as soon as it is , and in any event not less than TIME before the time the demonstration is to start .", "( CARDINAL ) The notice must be given–", "( a ) if the demonstration is to be carried on by CARDINAL person , by any of the persons organising it ,", "( b ) if it is to be carried on by a person by himself , by that person .", "( CARDINAL ) The notice must state–", "( a ) the date and time when the demonstration is to start ,", "( b ) the place where it is to be carried on ,", "( c ) how long it is to last ,", "( d ) whether it is to be carried on by a person by himself or not ,", "( e ) the name and address of the person giving the notice .", "( CARDINAL ) A notice under this section must be given by–", "( a ) delivering it to a police station in the metropolitan police district , or", "( b ) sending it by post by recorded delivery to such a police station .", "( CARDINAL ) Section CARDINAL of LAW DATE ( c. CARDINAL ) ( under which service of a document is deemed to have been effected at the time it would be delivered in the ordinary course of post ) does not apply to a notice under this section .", "Section CARDINAL is entitled “ Authorisation of demonstrations in designated area ” and reads as follows :", "“ ( CARDINAL ) This section applies if a notice complying with the requirements of section CARDINAL is received at a police station in the metropolitan police district by the time specified in section CARDINAL ) .", "( CARDINAL ) The Commissioner must give authorisation for the demonstration to which the notice relates .", "( CARDINAL ) In giving authorisation , the Commissioner may impose on the persons organising or taking part in the demonstration such conditions specified in the authorisation and relating to the demonstration as in the Commissioner ’s reasonable opinion are necessary for the purpose of preventing any of the following–", "( a ) hindrance to any person wishing to enter or leave FAC ,", "( b ) hindrance to the proper operation of ORG ,", "( c ) serious public disorder ,", "( d ) serious damage to property ,", "( e ) disruption to the life of the community ,", "( f ) a security risk in any part of the designated area ,", "( g ) risk to the safety of members of the public ( including any taking part in the demonstration ) .", "( CARDINAL ) The conditions may , in particular , impose requirements as to–", "( a ) the place where the demonstration may , or may not , be carried on ,", "( b ) the times at which it may be carried on ,", "( c ) the period during which it may be carried on ,", "( d ) the number of persons who may take part in it ,", "( e ) the number and size of banners or placards used ,", "( f ) maximum permissible noise levels .", "( CARDINAL ) The authorisation must specify the particulars of the demonstration given in the notice under LAW pursuant to subsection ( CARDINAL ) of that section , with any modifications made necessary by any condition imposed under subsection ( CARDINAL ) of this section .", "( CARDINAL ) The Commissioner must give notice in writing of–", "( a ) the authorisation ,", "( b ) any conditions imposed under subsection ( CARDINAL ) , and", "( c ) the particulars mentioned in subsection ( CARDINAL ) ,", "to the person who gave the notice under LAW . ”", "Section CARDINAL is entitled “ Offences under sections CARDINAL to CARDINAL : penalties ” and reads , in so far as relevant , as follows :", "“ ( CARDINAL ) A person guilty of an offence under section CARDINAL ) is liable on summary conviction to imprisonment for a term not exceeding DATE , to a fine not exceeding level CARDINAL on the standard scale , or to both .", "( CARDINAL ) A person guilty of an offence under section CARDINAL ) or ( c ) is liable on summary conviction to a fine not exceeding level CARDINAL on the standard scale . ”", "Section CARDINAL is entitled “ The designated area ” and provides as follows :", "“ ( CARDINAL ) The Secretary of ORG may by order specify an area as the designated area for the purposes of sections CARDINAL to CARDINAL .", "( CARDINAL ) The area may be specified by description , by reference to a map or in any other way .", "( CARDINAL ) No point in the area so specified may be QUANTITY in a straight line from the point nearest to it in FAC . ”", "By ORG Designated Area ) Order DATE , the Secretary of ORG defined , pursuant to section CARDINAL of the CARDINAL Act , an area of GPE surrounding ORG and FAC as constituting a “ designated area ” for the purposes of the CARDINAL Act . The text of the Order and a map attached to it delineated the precise area ." ]

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[ "NORP The applicant , Mr PERSON , is a NORP and NORP national , who was born in DATE and lives in GPE .", "NORP In DATE GPE started issuing a multifunctional smart card called “ Opencard ” for GPE residents and visitors . It can be used for numerous services offered by the LOC or other providers , including the GPE public transport system .", "There were CARDINAL kinds of Opencard : ordinary or anonymous . An ordinary card is free of charge and anybody can apply by completing an application form that includes personal details such as name , date of birth , place of residence , email address , telephone number and a photo . Applicants must also sign a consent form on the processing of personal details and provision of information in which they consent to the further processing of the personal data from the application form and from using the card by both GPE and any provider of a service which the applicant would use in the future with the PERSON system . Withdrawal of consent by the applicant results in suspension of the card ’s use for services . An anonymous card without any personal identification information costs CARDINAL NORP korunas ( CZK ) ( MONEY ( ORG ) ) but its use is limited to certain services .", "DATE an Opencard could be used as a public transport pass . A yearly pass that could be downloaded onto the card cost CZK CARDINAL,CARDINAL ( ORG CARDINAL ) . Those without an PERSON could not buy a DATE pass but instead could buy CARDINAL DATE passes , which together cost CZK CARDINAL ( EUR CARDINAL ) .", "On DATE ORG concluded its investigation into the Opencard system and found that GPE had not adequately informed users of the future processing of their personal data and that they were therefore in violation of ORG ( no . CARDINAL ) . The ORG also reiterated its previous opinion that there should be an alternative way to access the services for those not wishing to use an Opencard . It also ordered GPE to offer each PERSON user the possibility of using a card without the necessity of consenting to further processing of his or her personal data .", "As a result GPE introduced in DATE a third type of PERSON , which is personal . Personal data are printed on the card but not stored or further processed . Adults holding this PERSON can buy long - term passes for public transport under the same conditions as holders of Opencards who gave consent to the processing of their personal details . This new type of card costs CZK CARDINAL ( EUR CARDINAL ) .", "NORP The current price ( from DATE ) of a yearly pass for GPE public transport is CZK MONEY ( ORG CARDINAL ) for holders of both types of personal LAW CARDINAL,CARDINAL ( EUR CARDINAL ) for holders of an anonymous PERSON or for those without an PERSON .", "The applicant did not want to provide his personal details to GPE and consent to processing , and therefore did not apply for an Opencard .", "On DATE he asked ORG ( a joint - stock company PERCENT owned by GPE ) whether he could buy a yearly pass for the same price as users of the PERSON system . He explained that he did not wish to consent to the processing of his personal data . As he received no reply he bought CARDINAL consecutive DATE passes .", "On DATE he requested ORG to reimburse him CZK CARDINAL ( EUR CARDINAL ) , corresponding to the difference between the price of DATE pass and the price he had to pay for DATE passes . Having received no reply , the applicant brought civil proceedings for unjust enrichment .", "On DATE the GPE ORG rejected this claim . It held that the income from fares was further redistributed and thus the defendant was not its only receiver and was therefore not responsible for any loss suffered by the applicant . No appeal lay against that decision .", "NORP The applicant lodged a constitutional appeal alleging a violation of his right to privacy and fair trial . He argued that the brief judgment of ORG was beyond any legal logic and in effect lacked any reasoning . He further maintained that there was no other remedy in the domestic law to protect him from violations of his private life and that he could only claim compensation for the financial loss he had sustained as a result of refusing to give his personal details .", "On DATE ORG dismissed the applicant ’s constitutional appeal as manifestly ill - founded . It held that the subject matter of the proceedings was CARDINAL and , applying the de minimis non curat praetor rule , there could be an interference with fundamental rights only exceptionally in such instances . It did not find any special circumstances in the present case that would require it to hold otherwise . It added that it was obvious that the applicant ’s primary concern was not unjust enrichment but protection of his personal data ; however , an action for unjust enrichment was not a means to protect those rights ." ]

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[ "The applicant was born in DATE and lives in GPE . He is the son of Mr PERSON , a draper by trade , who died on DATE after suffering a brain haemorrhage .", "On DATE , at TIME , shots were fired in the direction of the local gendarmerie post in the Çermik district ( ORG ) . CARDINAL non - commissioned officers ( NCOs ) serving at the post , PERSON and GPE , went out on patrol under the command of Officer PERSON . They noticed Mr PERSON 's drapery shop , with CARDINAL customers inside , GPE , GPE and ORG", "According to the Government , Officer PERSON agitatedly asked the customers whether they had heard the shots being fired and hurled abuse at the DATE PERSON for having his shop open so late . CARDINAL police officers , PERSON and ORG , alerted by the din , witnessed the incident .", "According to the applicant , Officer PERSON not only agitatedly questioned those present in the drapery shop but also violently beat PERSON .", "The following day , PERSON went to see PERSON , the LOC governor , handing him a complaint against Officer PERSON which he had had typed ( see paragraph CARDINAL below ) .", "However , the district governor , being anxious for the protagonists to settle their differences , allegedly kept hold of the complaint .", "On DATE PERSON summoned PERSON and Officer PERSON to his office . PERSON was accompanied at the meeting by GPE , the mayor of Çermik . It appears that during the conversation PERSON complained of a headache . For his part , Officer PERSON is said to have apologised , explaining that he had been drunk on TIME of the incident ; PERSON then forgave him and withdrew his complaint . At that point , PERSON allegedly tore up the letter of complaint he had kept .", "On DATE PERSON was admitted to ORG in a coma . A computed tomography brain scan revealed a severe haemorrhage in the left frontoparietal region .", "An explanatory note attached to the back of the scan image referred to the haemorrhage as “ chronic ” , in other words resulting from bleeding over a prolonged period .", "A life - threatening clinical presentation emerged from subsequent examinations . DATE , PERSON underwent an operation to drain a haematoma , performed by a neurologist , GPE", "On DATE he was transferred to ORG , where he died DATE .", "Later on DATE an autopsy was carried out by a single forensic medical examiner , ORG , under the authority of the ORG public prosecutor . PERSON subsequently drew up a report , which began by referring to the content of the medical records kept at ORG .", "According to the report , a superficial examination of the skull revealed a haematoma and an ecchymosis slightly below the surgical scar in the left frontal lobe ; in the same area , there was a hole where the skull had been opened up . An intracranial examination revealed a subdural haematoma in the left frontoparietal lobe , multiple areas of brain - tissue degeneration at the base of the left hemisphere , severe cerebral oedema and a swollen cerebellum .", "According to the forensic medical examiner , a blow sustained “ DATE ” could well have been the cause of death .", "According to the mayor of ORG , the complaint that ORG had handed to the district governor ( see paragraph CARDINAL above ) was found in the deceased 's pockets . On DATE H.A. submitted the document in question to the public prosecutor and gave the following summary of what had happened in the district governor PERSON 's office :", "“ ... Accompanied by PERSON , I went into the district governor 's office ; he was there together with Officer PERSON . The officer spoke to PERSON and apologised , saying : ' I beat you up TIME and displayed an attitude incompatible with my rank as an officer ; I am sorry . ' Mr PERSON replied : ' OK , Captain , but I want you to know that you hit me for no reason and my head [ still ] hurts ' ; the district governor then said to him : ' I 'll send you to see a doctor ... ' The written , unsigned complaint I have with me was found in the deceased 's pocket ; Mr PERSON had had it drawn up [ by someone else ] but had not handed it to its addressee ( the Çermik district governor 's office ) . ”", "The complaint in question , of which the Government produced a copy , is dated DATE and is not signed . It is likely that it was typed by another person with some knowledge of procedural matters . The complaint is addressed to the “ authority of the Çermik district governor 's office ” and accuses Officer PERSON of “ assault and insults ” . In it the events are summarised as follows :", "“ CARDINAL- On TIME DATE , at TIME , GPE , GPE and GPE , from the village of ORG in Çermik , came to my home ; the witness GPE asked me for a shroud of QUANTITY in order to take his deceased father back to the village ... ;", "CARDINAL- Together with those persons , I went to open up my drapery shop in FAC . While I was measuring the fabric ... , the accused PERSON came into my shop , accompanied by CARDINAL or QUANTITY gendarmes and QUANTITY police officers .", "CARDINAL- Captain PERSON said to me : ' Some shots have been fired ; did you hear them ? ' ; I replied : ' Yes , but I do n't know where they came from . ' I explained that I had opened up the shop to provide the persons present , whose father had died , with fabric for a shroud .", "CARDINAL- Officer ... then punched me , shouting : ' You 're lying , you son of a ... ' While I was asking him what I had done wrong , the officer carried on hitting me , as though drunk .", "CARDINAL- The incident took place in front of the gendarmes ... , the CARDINAL police officers and the customers ...", "CARDINAL- NORP I am lodging a complaint against the captain . I have bruises on my body , my head hurts from the blows I received and my left ear is torn .", "CARDINAL- I demand the opening of an administrative investigation in respect of the accused and my referral to a doctor for a report , and I ask your office to notify the relevant authorities about the accused ... ”", "On DATE the applicant and his mother lodged a formal complaint against Officer PERSON with the PERSON public prosecutor ( “ the public prosecutor ” ) .", "DATE , the public prosecutor interviewed the eyewitnesses GPE , GPE and ORG ( see paragraph CARDINAL above ) . They stated that on TIME of the incident Mr PERSON had been violently punched and kicked , in particular in the head , by Officer PERSON . GPE added that he himself had also been punched twice on the chin when he had exclaimed : “ What 's wrong with buying a shroud ? ”", "On DATE police officers PERSON and ORG and a local gendarmerie ORG were interviewed . The police officers explained that they had heard Officer PERSON hurling abuse at people inside the shop , but that they had not seen him hit them .", "On an unspecified date the applicant 's lawyer contacted the public prosecutor 's office at ORG , seeking to have Officer PERSON placed under arrest in order to prevent him from putting pressure on witnesses and disposing of incriminating evidence .", "On DATE the military prosecutor 's office indicated that it was not empowered to take the action requested , as offences committed by members of the armed forces against civilians came under the jurisdiction of the ordinary criminal courts .", "On DATE the public prosecutor interviewed NCOs A.B. and GPE", "PERSON explained that their commanding officer had been annoyed to see customers in a shop open at TIME and had asked them to leave the LOC immediately . He stated that the victim and some young people had been in the shop , and added :", "“ It must nevertheless be admitted that when we went to the scene we were stressed because of the shooting ; under pressure , we could certainly have hit someone , even without really intending to ; however , if it had come to that , we would have gone for the young men as they are more dynamic and likely to commit offences . ”", "ORG stated that on DATE of the incident he had not gone into the shop and had consequently not seen what had happened there .", "On DATE the public prosecutor sent a summary report on his inquiry to ORG and asked for permission to place Officer PERSON under investigation under LAW . Permission was granted on DATE .", "On DATE the public prosecutor questioned Officer PERSON , who denied that he had beaten the applicant 's father , claiming that he was the victim of a plot hatched by members of terrorist organisations or other underground groups to hinder the gendarmerie 's work in fighting terrorism . According to Officer PERSON , PERSON had complained to the district governor that he had been verbally abused ; as a result , he had gone to the district governor 's office himself to meet PERSON and had apologised for having lost his temper . PERSON had accepted his apology without ever claiming that he had been beaten . Officer PERSON was dismayed that anyone might think that an officer of his rank who had served his homeland for DATE could have gratuitously set about an elderly man and gone so far as to beat him up .", "He further challenged the competence of the forensic medical examiner who had conducted the autopsy of the body in the absence of a pathologist . He noted that in any event the autopsy had not found any possible traces of the alleged acts of violence . In addition , he invited the public prosecutor to consider how a person claiming to have been so severely beaten could have omitted to contact a doctor and the prosecuting authorities .", "Officer PERSON asserted that the complaint lodged on DATE had been entirely fabricated by PERSON relatives , as had the unsigned letter of complaint allegedly found in the deceased 's pockets , and explained that after the meeting in the district governor 's office the original complaint had been torn up .", "On DATE , DATE and DATE the public prosecutor took initial statements from GPE , GPE , GPE and GPE , who had been seen near the shop on TIME of the incident . They stated that they had not seen Officer PERSON assault ORG .", "ORG , the eyewitnesses GPE , GPE and ORG were questioned again . They retracted their previous statements , asserting that Officer PERSON had not beaten PERSON and that they had been forced to state otherwise following threats by CARDINAL unknown persons who had not been seen since .", "On CARDINAL and DATE the public prosecutor summoned CARDINAL other potential witnesses , PERSON . and GPE , whose statements did not bring any new evidence to light .", "On DATE the public prosecutor sent ORG a second summary report on the investigation , asking whether he should institute criminal proceedings .", "On DATE the ORG replied in the affirmative .", "In the meantime Officer PERSON had been promoted from the rank of captain to major .", "On DATE the PERSON public prosecutor , to whom the case had been assigned , indicted Officer PERSON in FAC ( “ the LOC ” ) for unintentional homicide under LAW and asked the President of ORG to order his detention pending trial .", "On DATE the President refused the request on the ground that the suspect had a fixed abode and there was no risk of his evading trial or concealing evidence .", "On DATE the mayor PERSON tendered his resignation on the ground that no action had been taken on his request for Officer PERSON to be transferred to another town in view of the events in which he was implicated .", "It appears that both GPE and GPE were subsequently called up for military service .", "The trial opened in ORG on DATE . The applicant and his mother applied to join the proceedings as intervening parties , reserving the right to claim compensation .", "Several witnesses appeared on DATE , including the applicant 's mother . She stated that on returning home after the incident , her husband had had visible injuries to his face and that subsequently his health had rapidly deteriorated .", "The eyewitnesses GPE , ORG retracted their statements a further time and confirmed the truth of their initial accusations against Officer PERSON .", "GPE explained that he had been forced by Officer PERSON to retract his initial statement if he did not want to end up like PERSON . He then confirmed that the accused had indeed started to hit the applicant 's father for no reason ; he had first banged PERSON head against a table , before kicking him and then banging his head against the shelves . After ORG had collapsed on the ground , Officer PERSON had carried on kicking him in the head .", "ORG maintained that the reason why he had given evidence in favour of Officer PERSON was that he too had been threatened by him . He explained that the officer had in fact kicked PERSON in the head and abdomen and had banged his head against the walls until he could no longer stand .", "ORG likewise retracted his second statement , explaining that he had made it out of fear that Officer PERSON might take it out on him during his military service .", "Police officer ORG , the gendarmes GPE and PERSON and ORG also gave evidence .", "H.A. stated that after the victim 's death , Officer PERSON had asked him to help secure his reconciliation with the PERSON family , to whom he wished to pay a sum of money to make amends for the wrong he had done . He added that during their meeting in the district governor 's office , Officer PERSON had also said that he had had too much to drink on TIME of the incident and that he was aware that he had acted wrongly .", "ORG stated that he had gone to the scene with his colleague after hearing shots being fired . He added that from outside the shop they had heard Officer PERSON reprimanding the victim but had not seen him beat him .", "ORG PERSON accused PERSON of having twice attempted to put pressure on him to give evidence against his commanding officer .", "On DATE Officer PERSON produced to ORG a letter dated CARDINAL DATE containing death threats against him .", "On DATE the gendarmerie general command informed the judges of the trial court that Officer PERSON had been relieved of his duties with effect from DATE .", "In a letter of CARDINAL DATE Ö.Y. , who was performing military service at the time , informed ORG that Officer PERSON had compelled him to retract his original statement and subsequently , shortly before the trial , had offered him free air tickets to travel to the courthouse and testify in his favour . He stated that Officer PERSON had in fact grabbed PERSON by the neck and had repeatedly banged his head against the walls . He added that ORG had collapsed to the ground and had hit his head on the floor .", "On DATE Officer PERSON requested that ORG ( “ the Institute ” ) produce a further expert opinion in response to the autopsy report . He again alleged that he had been the victim of a plot , this time orchestrated by PERSON , the former mayor of Çermik , on account of the latter 's defeat in the elections .", "For his part , the district governor PERSON explained that on DATE after the incident Mr PERSON had indeed come to see him with a written complaint . He stated , however , that the complaint was much briefer than the document allegedly found in the victim 's pockets and contained no allegations of assault . The district governor stated that he had summoned the protagonists to his office as the deceased had feared that he might be accused of involvement in the unresolved incident of the shots fired on DATE . PERSON stated that during the meeting Officer PERSON had apologised for uttering insults and that PERSON had never claimed that he had been beaten . He added that after the meeting he had torn up the deceased 's complaint , believing that matters had been settled .", "On DATE the applicant 's lawyer warned the ORG 's forensic experts that Officer PERSON might attempt to intimidate them into producing an opinion that was favourable to him .", "On DATE ORG decided to obtain additional medical evidence concerning the precise circumstances of the death and instructed the ORG to draw up a full report as a matter of urgency .", "On DATE and DATE and CARDINAL DATE ORG refused applications for Officer PERSON to be detained pending trial .", "At the hearing on CARDINAL DATE ORG heard evidence from a colleague of ORG , a neurologist , GPE , who gave his opinion on the basis of ORG medical records . He stated that the haematoma was located between the dura mater and the skull , and not in the actual brain . A subdural haematoma of that kind was more likely to result from cranial trauma . It was therefore improbable in his view that the haematoma had been caused by hypertension , especially as the patient 's blood pressure had been recorded as normal at the hospital .", "On DATE the neurological surgeon ORG gave evidence . He stated that he did not agree with the note attached to the back of the scan image that the haematoma was “ chronic ” , which meant that it had formed very gradually . He added that he did not know who could have attached the note but that he was convinced , having himself operated on ORG , that the haemorrhage was “ sub - acute ” and that it could thus have been caused by a second blow , occurring in DATE before the death . He further noted that the patient had been admitted to hospital in a coma , a symptom not associated with cases of chronic haemorrhages , and explained that while PERSON", "At the next hearing , some CARDINAL inhabitants of the deceased 's native village stated that he had told them that he had been beaten by Officer PERSON and was suffering from pains in the head , stomach and feet but that , as a matter of pride , he had not wanted to see a doctor .", "At the hearing on CARDINAL DATE ORG heard evidence from a radiologist , PERSON , who stated that according to standard medical practice , the results of the scan performed on PERSON should have been analysed by a radiologist ; at the relevant time , however , he had been the only radiologist employed at the general hospital and he could not imagine who else could have attached the note indicating the presence of a chronic haemorrhage .", "Counsel for the applicant accordingly demanded that the ORG clarify the contradictions between the various medical opinions .", "NORP On DATE ORG submitted its report . It found that it could not be concluded with any certainty that Mr PERSON had died as a result of an injury sustained on DATE , particularly as no scan images had revealed any traces of ecchymotic lesions to the bone . The report concluded that the haemorrhage observed during the autopsy could have developed after the operation .", "On DATE the applicant 's lawyer challenged that conclusion and asked for the case to be reviewed by ORG .", "ORG gave its opinion on DATE , after studying the CARDINAL different medical opinions in the file . It concluded that the causes of death could not be determined with any certainty and that no causal link could be sufficiently established between the alleged acts of violence and the deceased 's clinical presentation .", "Having inspected the deceased 's medical records , ORG nevertheless noted certain shortcomings which made it impossible to determine the exact process by which the death had occurred . The autopsy report gave no indication of the colour , density , quantity and extent of the intracranial haematoma and there had been no histological examination of blood samples or of the area described as having been affected by diffuse degeneration of the brain tissue .", "At the hearing on DATE counsel for the applicant also challenged these conclusions , arguing that they had no scientific basis .", "In its judgment of DATE ORG endorsed the public prosecutor 's opinion that the charge of unintentional homicide should be dismissed as there was no clear causal link between the death and the alleged blows .", "However , ORG found Officer PERSON guilty of ill - treatment in the performance of official duties , within the meaning of Article CARDINAL of LAW . It sentenced him to the minimum penalty of DATE imprisonment and suspended him from duty for DATE .", "The court considered that what constituted ill - treatment on Officer PERSON 's part was that he had “ made remarks that were likely to offend the victim and engender feelings of distress and anxiety in him ” and not that he had beaten him . It found that , even assuming that Officer PERSON had hit the victim as well , such an act would at most have also fallen within the scope of LAW , which prohibited all forms of ill - treatment of others , including physical violence , in the performance of duties involving the preservation of order in a region affected by terrorism .", "As to the length of the sentence , the judges pointed out that the accused deserved a favourable assessment on account of the socio - economic conditions in the region where he was serving and his various personal qualities . They thus decided to reduce his prison sentence to DATE and DATE in view of his “ good conduct ” . The sentence was subsequently commuted to a fine of CARDINAL old NORP liras , which at the relevant time was equivalent to MONEY or QUANTITY .", "Lastly , ORG decided to suspend the enforcement of the fine , being persuaded that Officer PERSON would not reoffend .", "In his capacity as an intervening party , the applicant appealed to ORG , arguing in particular that insufficient consideration had been given to the evidence for the prosecution , that the accused had never been placed in pre - trial detention and that , in view of his status as a high - ranking officer , he had remained free to exert pressure on the witnesses and forensic experts .", "On DATE ORG upheld the impugned judgment .", "The relevant provisions of LAW read as follows :", "“ Any law - enforcement officer ... who , in the course of duty ... and in circumstances other than those prescribed by law ... , ill - treats , injures or strikes or does bodily harm to another person shall be sentenced to DATE imprisonment and temporarily barred from public service . ... ”", "“ Where death results from an act of violence ... inflicted without the intention to kill the victim , ... a sentence of DATE imprisonment shall be imposed on the offender ...", "If the death occurs as a result of the offender 's act combined with circumstances which had existed prior to the act and had not been known by the offender or as a result of fortuitous circumstances that the offender could not anticipate , ... a sentence of a minimum of DATE imprisonment shall be imposed ... ”", "Articles CARDINAL to CARDINAL of LAW ( ORG ) govern investigations into acts capable of constituting offences such as those punishable under LAW ( ill - treatment ) or CARDINAL ( unintentional homicide ) of LAW . Such acts may be reported to the authorities or members of the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority to which it has been made must make a record of it . The complaint may also be lodged through provincial governors , district governors or village mayors . By DATE LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the course of his duties is liable to imprisonment ( see GPE v. GPE , DATE , § § CARDINAL , Reports of Judgments and Decisions CARDINALVI , and GPE v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ORG CARDINALVII ) .", "For a summary of the rules governing civil and administrative liability for the acts of ORG agents , see , for example , GPE v. GPE ( ( dec . ) , no . CARDINAL , DATE ) and PERSON v. GPE ( no . CARDINAL , § CARDINAL , ORG ORG ) .", "For the determination of criminal sentences and the rules governing their execution , see PERSON , cited above , § § CARDINAL and DATE ." ]

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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 applicant , may be summarised as follows .", "In DATE the applicant and another man , A. , intended to found a real estate company ORG They bought CARDINAL pieces of property and signed the purchase deeds on behalf of PERSON The applicant owned CARDINAL parts of the shares of ORG owned CARDINAL/CARDINAL parts of them .", "In DATE the applicant sold his shares to his female friend PERSON Later the foundation of PERSON elapsed as the applicant and PERSON had failed to apply for its registration within the relevant time - limit . Their application concerning the registration to ORG of the real estates on behalf of PERSON was refused as PERSON had never been registered as a company within the meaning of LAW .", "DATE the applicant failed to pay a loan he had guaranteed on behalf of ORG ordered that the above - mentioned real estates be sold in a forced auction in DATE . The applicant objected to this and informed the Bailiff that he did not own any of the real estates as he had sold his shares of GPE to T. already in DATE .", "The applicant ’s appeal against the ORG ’s decision was not examined by ORG as the applicant was not found to be a party to the proceedings as he had not owned the real estates . It was found that it was only the actual owner who had the sole competence to make such an allegation ( ORG had not appealed against the Bailiff ’s decision ) . Insofar as A. ’s part of the shares was concerned , ORG found that A. had not been informed of the Bailiff ’s decision . The relevant time - limit for appeal was returned to A.", "On DATE ORG ordered the forced auction to be adjourned until it had examined ORG ’s appeal . In the meantime , it ordered that A. should institute proceedings before the local ORG in order to establish the real owners of the real estates . He was also requested to inform ORG outcome of such proceedings if he wished to continue the examination of his appeal before ORG .", "On DATE and PERSON instituted civil proceedings against the applicant , a bank , and various other parties , requesting ORG to confirm that the real estates were owned by PERSON , that ORG owned CARDINAL/CARDINAL parts of PERSON , and that ORG owned CARDINAL parts of it . They argued that the ORG ’s decision to seizure the real estates and to order them to be auctioned in order to pay the applicant ’s debts was illegal as the applicant was not an owner any more . They , thus , requested that the seizure be quashed by ORG .", "On DATE ORG dismissed the case insofar as it concerned the claims instituted by PERSON , finding that the case was based on ORG decision of DATE in which ORG ’s appeal had not been examined insofar as it concerned ORG ’s possible ownership of the shares as T. ( nor PERSON ) had not appealed against the ORG ’s decision herself . It considered that the ORG ’s decision only concerned the question whether ORG ownership was to be confirmed and that it , thus , lacked competence to examine the case any further in that respect . It adjourned the case insofar as A. ’s ownership was at issue .", "PERSON appealed against ORG decision to ORG which upheld ORG decision on DATE . Both T. and the applicant sought leave to appeal from ORG even though it was only PERSON who had appealed against ORG decision to ORG . On DATE ORG refused the applicant and T. leave to appeal .", "On DATE ORG issued a judgment by default in respect of the rest of the case , i.e. in respect of A. ’s ownership of the real estates . It confirmed that ORG owned CARDINAL/CARDINAL parts of each of the CARDINAL real estates as he had owned CARDINAL/CARDINAL parts of ORG ’s shares and as the foundation of PERSON had elapsed , in which occasion the assets of ORG were returned to the owners of its shares .", "ORG having confirmed that ORG owned CARDINAL/CARDINAL parts of the real estates at issue , the Bailiff rectified , on DATE , his own earlier seizure decision and ordered that CARDINAL parts of the real estates were to be seized and auctioned ( i.e. he annulled the decision only insofar as A. ’s property was concerned ) . As T. had failed to institute any proceedings within the relevant time - limit to have her ownership to the rest of the real estates confirmed , and as CARDINAL else had instituted such proceedings either , the seizure decision concerning the CARDINAL parts of the real estates stayed unchanged .", "The applicant , A. and ORG all appealed to ORG against the Bailiff ’s decision concerning the seizure of the CARDINAL parts of the real estates . The applicant ’s and A. ’s appeals were dismissed as they were not found to be affected by the decision which concerned seizure of ORG ’s property .", "ORG ’s appeal was dismissed by ORG on DATE because the ORG ’s decision of DATE had concerned only the rectification of his earlier decision in respect of the part of the real estate owned by ORG and as there is no appeal against a decision not to rectify a decision ( i.e. no new decision had been issued in this respect and the decision of DATE , against which ORG had failed to appeal within the relevant time - limit , was still valid ) .", "The applicant , A. and ORG appealed against ORG decision to ORG which , on DATE , upheld the ORG decision . On DATE ORG refused all the parties leave to appeal .", "In the meantime , on DATE , the applicant , A. and ORG all requested from ORG that the forced auction , which was planned to be held on DATE , be cancelled until ORG had examined their appeal against ORG decision of DATE . The applicant , among others , argued that the auction would be illegal and claimed that ORG had adjourned the enforcement of the seizure decision until the question of the ownership had been legally decided and until the parties had informed the ORG , within CARDINAL months’ time - limit , of that decision .", "This request was refused by ORG on DATE . It found that an auction which had already been announced publicly could only be cancelled if there were exceptional reasons for such a cancellation and if the person seeking for such a cancellation had paid a full guarantee of the auction expenses . As the applicant and his counterparts had not submitted any such exceptional reasons to their request nor paid the guarantee , ORG could not accept their appeal .", "On DATE ORG refused the parties leave to appeal . Their later request to re - open the proceedings was rejected by ORG on DATE .", "The CARDINAL parts of the real estates were sold in an forced auction on DATE .", "The applicant , A. and ORG all complained about the enforcement of the forced auction to ORG . They argued , inter alia , that ORG had ordered on DATE that the forced auction shall be adjourned until ORG had examined A. ’s appeal after the final decision had been issued in the proceedings concerning the ownership of the real estates . As those proceedings had not yet ended at the time of the forced auction , the auction was to be considered illegal and should , thus , be annulled . The applicant also claimed that ORG judge was biased as he had participated also in the proceedings concerning the applicant ’s earlier appeals in respect of the same seizure of the same real estates .", "On DATE ORG rejected the applicant ’s and the other parties’ complaints . It found that the final decision concerning the ownership proceedings had been issued on DATE when ORG had issued a judgment by default . The Bailiff had informed ORG orally about the decision . As ORG had found no reason to a further adjournment of the auction after having received that information , ORG found the complaint manifestly ill - founded .", "The applicant , A. and ORG appealed against ORG decision to ORG which , on DATE , upheld ORG decision . It found that , even though ORG decision would have been needed in order to continue the seizure which had been adjourned by ORG , it was important to note that the real estates had in fact been auctioned also in order to pay the debts of A. That payment was , however , based only on the Bailiff ’s later seizure decision of CARDINAL DATE which had not been appealed against . Thus , there was no need for the protection of A. ’s legal rights in respect of the earlier seizure as the question was to be regarded only of theoretical interest . Insofar as the other part of the real estates was auctioned , ORG noted that ORG ’s ownership had never been confirmed by a court and that , thus , that part could be auctioned in order to pay the applicant ’s debts .", "On DATE ORG refused the applicant leave to appeal .", "In DATE the applicant , A. and ORG requested the police to investigate whether the Bailiff , ORG and various other authorities had committed an offence when allowing the auction to take place even though the ORG ’s decision of adjourning the enforcement proceedings had still been valid . Having received the relevant police report the local public prosecutor decided , on DATE , not to institute criminal proceedings against anyone as he found that the ORG ’s decision had not been valid any more ( as the Bailiff had informed the ORG within the relevant time - limit of the final court decision concerning the ownership proceedings ) and that no offence had been committed by any of the relevant authorities involved .", "The applicant has since submitted numerous complaints to various authorities , including , inter alia , ORG , the Chancellor of ORG , the NORP President and the Minister of Justice . None of these complaints has been successful , no more than the applicant ’s efforts to institute criminal proceedings against persons involved in the decision - making in some of these complaint proceedings ." ]

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[ "The applicant was in the care of ORG ( “ the Board ” ) from when he was DATE until the age of majority ( DATE ) . From DATE he was placed in children 's homes and thereafter with a foster family . In DATE the foster placement broke down and the subsequent placement with a “ carer ” family also broke down due to the applicant 's behaviour . DATE and DATE he was detained at Oberstown Boys ' Centre on foot of assault charges . Subsequent placements failed again due to the applicant 's behaviour and in DATE the ORG placed him in a private and specialised residential unit in GPE , which placement also failed .", "NORP In DATE the applicant was convicted in GPE of criminal damage , burglary , arson and aggravated theft ( offences committed during his stay in the above - mentioned residential unit ) and sentenced to DATE in prison . In DATE , and at the request of ORG , ORG granted a warrant ( pursuant to ORG ) allowing the applicant to serve the balance of his DATE sentence in PERSON Institution ( “ PERSON PERSON 's ” ) in GPE . The applicant was released on DATE .", "He slept rough the first night of his release and subsequently resided on a temporary basis in a homeless boys ' hostel run on a voluntary basis by a priest . From then until the judicial review proceedings ( described below ) issued , the applicant 's solicitor wrote to the Board CARDINAL times requesting that proper accommodation be made available to the applicant . A case conference was held on DATE where it was agreed that his needs would be met in a high - support therapeutic unit for CARDINAL- to DATE but that no such unit existed in GPE and could not be put in place in time for the applicant 's needs . It was decided that ORG would look into placements outside GPE and into interim options in GPE .", "On DATE ORG appointed a guardian ad litem and gave the applicant leave to apply for judicial review ( citing , inter alia , ORG and the Attorney - General as respondents ) for ( a ) a declaration that , in failing to provide suitable care and accommodation for the applicant and in discriminating against him as compared with other children , the respondents deprived the applicant of his constitutional rights under , in particular , Articles CARDINAL § CARDINAL , QUANTITY ( CARDINAL ) , QUANTITY ( CARDINAL ) and CARDINAL § CARDINAL of LAW . The applicant referred in this context to his being a child at risk , namely dangerous to himself and potentially to others , and pointed out that the lack of appropriate care meant that his rights had not been vindicated ; ( b ) an order of mandamus and an injunction directing the respondents to provide suitable care and accommodation for the applicant were also requested . The grounds submitted by the applicant related to the ORG 's failure to comply with its statutory duties to provide such accommodation under sections CARDINAL , CARDINAL , DATE and DATE LAW DATE ; and ( c ) damages , although the applicant had submitted that he would suffer irreparable loss and damage for which monetary compensation would not suffice ( hence the application for an order of mandamus and an injunction ) .", "The application for interlocutory relief ( namely for relief until the making of a final order following the hearing of the case ) came before ORG on DATE , DATE , DATE and CARDINAL DATE . However , on DATE the applicant was assaulted by another resident with an iron bar and taken to hospital with a fractured skull . He was operated on and subsequently discharged on DATE and spent TIME in bed - and - breakfast accommodation . On DATE the application was adjourned on the basis that the applicant would reside in the hostel ( run by the priest ) under continuous CARDINAL-hour supervision of childcare workers of ORG . ORG was to continue its enquiries for a suitable facility . On DATE ORG ordered that the applicant reside in PERSON , another hostel , under the care of social workers of ORG .", "The interlocutory matter was again considered by ORG on DATE . Evidence was presented to the effect that the applicant 's continued residence in that hostel was no longer feasible . Evidence was also heard from the ORG 's leader responsible for the applicant 's case who stated that the ORG 's facilities could no longer cater for the applicant . A consultant psychiatrist at ORG in GPE gave evidence to the effect , inter alia , that he knew of no services in the ORG that could even start to address the problems the applicant represented . A report was presented detailing a number of serious incidents , including threats of assault made by the applicant , and the court heard the legal submissions of the parties .", "The High Court delivered its judgment on DATE . ORG judge commented at the outset as follows :", "“ This is yet another case in which the ORG is called upon to exercise an original LAW jurisdiction with a view to protecting the interests and promoting the welfare of a minor . The application arises because of the failure of the ORG to provide an appropriate facility to cater for the particular needs of this applicant and others like him . It is common case that what is required to deal with his problem is a secure unit where he can be detained and looked after . No such unit exists in this ORG and even if one did , there is no statutory power given to the ORG to direct the applicant 's detention there . Such being the case , and in the absence of either legislation to deal with the matter or the facilities to cater for the applicant , I have in the short - term to do the best that I can with what is available to me . ”", "The judgment described the applicant 's history and family situation as “ quite appalling ” . He was CARDINAL of a family of CARDINAL children . His father was serving a life sentence for murder and serious sexual offences . His mother lived a “ chaotic lifestyle ” , refusing to settle in any type of permanent accommodation . Of his siblings , CARDINAL led a normal life . The others were in care , in detention or were drug users .", "On the evidence before it , ORG accepted that the applicant was not mentally ill but that he had a serious personality disorder ; that he was a danger to himself and to others ; that he had a history of criminal activity , violence and arson ; that he had absconded from non - secure institutions ; that he had failed to cooperate with ORG and its staff ; and that he had failed to cooperate in the carrying out of a psychiatric assessment of him in the past . It was “ common case ” that the applicant required a “ secure unit where he can be detained and looked after ” and that no such unit existed in GPE . ORG judge considered the welfare of the child to be paramount , noted the conflicting constitutional right to liberty of the applicant and observed that the evidence before him as to the child 's needs and the facilities available would resolve the conflict . The court considered that there were CARDINAL possible options .", "In the first place , ORG could order the applicant 's release from the custody of ORG . However , given the real risk of serious self - injury possibly resulting in death , this option was excluded . Secondly , the applicant could be sent back to PERSON . However , given the danger he posed to himself and to others and his previous lack of cooperation , the ORG ruled out this possibility . The third option was ORG but the evidence before ORG and the applicant 's own preference ruled out this option .", "The fourth option was the applicant 's detention in PERSON , which option was adopted with “ considerable reluctance ” by the court as the only manner of vindicating the applicant 's constitutional rights . ORG acknowledged that it was a penal institution . However , having noted the conflicting constitutional rights of the applicant , the applicant 's needs , the constitutional obligations of the ORG to the applicant and the relevant jurisprudence of the High and ORG in similar cases , the High Court judge was satisfied that the evidence supported his findings that , in the absence of any other facility within the State , the place most suitable to ensure the applicant 's welfare was PERSON , and that ORG could exercise its “ inherent jurisdiction ” developed by the jurisprudence ( to which the judgment referred ) in making an order for the applicant 's detention there . It was noted that the applicant had been in that institution previously and seemed to have done well there . Accordingly , he ordered that the applicant be brought to PERSON by the police and be detained there for DATE ( until DATE ) , all parties agreeing that detention for longer was not appropriate . ORG judge pointed out in conclusion that he was", "“ extremely unhappy at having to make this order ... but of the CARDINAL options available to [ him ] it is the CARDINAL which , in [ his ] view , is best suited to the welfare and needs of this applicant in the short term . It is not a solution . None of the other options are a solution either . But of the CARDINAL unattractive options it seems to [ him ] that from the welfare of this applicant it is the least offensive and in [ his ] view his welfare will be best served by being committed there as [ he has ] ordered ” .", "Certain conditions were attached to the order by ORG . The applicant was to be subject to the “ normal discipline ” of that institution and was to have a full psychiatric assessment . The “ fullest cooperation ” was requested by ORG between ORG and the authorities of the institution as regards access by the staff of ORG to the applicant to allow the professionals who had been dealing with the applicant to have input into his welfare whilst in PERSON , provided that that did not create insuperable difficulties from the point of view of the management of the institution . In particular , ORG recommended that the normal visiting restrictions applicable be waived as much as possible in the vital TIME after the applicant 's detention .", "NORP Moreover , ORG concerns about the suicide risks presented by the applicant were to be notified to the Governor of GPE PERSON 's and the appropriate facilities were to be put in place in this respect . ORG was to receive a report by the psychiatric staff of GPE PERSON 's and by ORG on the applicant 's progress , if any , and on his general well - being by DATE . There was to be liaison between the ORG and the guardian ad litem , the latter of whom was to obtain the reports to be prepared for the court on the applicant . In the meantime , ORG was to continue to try to find a suitable place for the applicant 's needs outside the jurisdiction and the matter was to be reviewed by ORG on DATE .", "On DATE ( DATE ) the applicant was brought to PERSON and placed in a padded cell TIME .", "DATE , the Chief Officer informed the applicant of the rules and regulations , the daily routine and of the services that were on offer ( educational , welfare , spiritual , library , gym , work and recreation ) , which latter matters were detailed in a booklet given to the applicant . The applicant was asked if he wished to attend educational classes . He made no such request and did not participate in the institution 's educational programme .", "The applicant appealed to ORG . He referred to the ORG 's failure to fulfil its statutory duties under sections CARDINAL and CARDINAL of LAW DATE and to respond to his constitutional rights under LAW . He also submitted that detention in a penal institution did not appropriately harmonise his conflicting rights under LAW and LAW ( CARDINAL ) . He also dealt , in his submissions , with the place of detention proposed by ORG arguing that , if detention was necessary and lawful to protect and vindicate a child 's rights , detention in a penal institution was not . A penal institution is a place of punishment , the effect of detention there , with or without conviction , constituted punishment and it was completely different to a high - security unit staffed by qualified childcare workers and operated in a manner consistent with LAW . His placement in a suitable high security environment would be more appropriate to his needs and the effect of such an order would be to oblige the Board to comply with its statutory duties and the ORG to comply with its constitutional duties through the ORG . He also relied on LAW ( d ) of the LAW .", "On DATE the Governor prepared a short conduct report for ORG in which he noted that the applicant was well behaved , mixed freely with other inmates and had not come under any adverse attention .", "ORG heard the applicant 's appeal on DATE and reserved judgment . Judgment was delivered on DATE and , by CARDINAL votes to CARDINAL , rejected the appeal . The Chief Justice gave the main judgment of ORG ( CARDINAL judges concurring ) and described the issues before him as being whether ORG had jurisdiction to order the detention of the applicant and , if so , whether that jurisdiction extended to making an order directing the applicant 's detention in a penal institution and , if so , whether the jurisdiction was properly exercised in the applicant 's case .", "The Chief Justice noted that ( apart from the particular jurisdiction assigned by the LAW and by the Statute ) ORG has an inherent jurisdiction “ as ample as the defence of the LAW requires ” . The Chief Justice noted the conflicting constitutional rights of the applicant at issue in the case : on the one hand , he had the right to liberty ( Article CARDINAL ) and , on the other hand , he had the unenumerated right “ to be fed and to live , to be reared and educated , to have the opportunity of working and of realising his or her personality and dignity as a human being ” . The Chief Justice accepted that ORG could be called upon to establish a priority of such rights as the case demanded . He noted that all parties agreed that the applicant 's welfare ( which was of paramount importance ) required his detention in a “ safe and secure unit ” , but he regretted that ORG judge was forced , by reason of the lack of any suitable facility , to order the applicant 's detention in a penal institution .", "In conclusion , the Chief Justice was satisfied that ORG had jurisdiction to make the order it did , that it did so in a lawful manner consistent with the requirements of the welfare of the applicant and that ORG was correct in exercising such jurisdiction for a short period of time . He added , however , that the exercise by the courts of their jurisdiction in the case should not be considered by the respondents in the proceedings to relieve them of their statutory obligations regarding the applicant and that they should continue their efforts to make suitable alternative arrangements consistent with the needs of the applicant .", "A fourth judge considered that ORG jurisdiction had not been directly disputed by the parties , and went on to agree with the option chosen by ORG . The fifth and dissenting judge in ORG considered that it was not for the courts to conjure up the necessary accommodation but to protect and vindicate the child 's rights and for the ORG to address its statutory duties and obligations . It was , in that judge 's view , a step too far to order the child 's detention in a penal institution having regard to his moral , intellectual , physical and social welfare and his rights to liberty , equality and bodily integrity .", "The High Court heard further expert evidence on DATE and apparently the applicant had been cooperative in PERSON . ORG continued his detention in PERSON until DATE on the conditions previously applicable , the ORG being required to inform the court on the return date of the full details and efforts made to provide facilities for the applicant .", "On DATE the ORG submitted that it had identified a property which would take a short time to equip and staff to enable it to receive the applicant and it was indicated that it would be ready by DATE . ORG also indicated that the applicant was to travel to GPE to be assessed with a view to possible placement there . While the applicant wanted to be immediately released , his guardian ad litem considered that he should not be left on the street . ORG directed his continued detention in PERSON until DATE and that every effort should be made by ORG to ensure that the relevant property be ready to receive the applicant by DATE .", "On DATE the applicant was released from PERSON by order of ORG . Apart from basic personal details and the relevant court orders constituting authority for detention , the applicant 's file from that institution contains few entries and his “ prisoner 's profile ” forms were mainly not filled in . There was a note to the effect that he had been placed in a padded cell in DATE and a copy of the Governor 's report of DATE .", "On DATE ( DATE ) the applicant was placed in the accommodation prepared by the ORG under CARDINAL-hour supervision . He was allowed to leave the LOC occasionally for limited periods . Leave was also given to take the applicant to GPE for assessment on DATE .", "The applicant then absconded from that property and a warrant for his arrest was issued by ORG on DATE . He was arrested and brought before ORG on DATE . On DATE , and having heard submissions from counsel for the applicant and ORG together with the evidence on behalf of ORG and of the applicant , ORG ordered the applicant 's detention in PERSON until DATE .", "Conditions were again applied by ORG to this detention . He was to be subject to the discipline of PERSON . A full assessment of the applicant 's drug dependency was to be made , the assessment to include any outpatient assessment and/or treatment consistent with the requirements of PERSON . There was to be liaison between the authorities of GPE PERSON 's and ORG . By DATE ORG was to be in possession of a report in relation to the applicant 's drug - addiction problem prepared by ORG and the staff of PERSON . The guardian ad litem was to have liberty to liaise with the authorities of PERSON and with ORG . The Governor was requested by ORG to dispense with the visiting restrictions during the first TIME of the applicant 's detention in so far as possible and consistent with the good running of the institution , to allow the officials of ORG to have full access to the applicant . The matter was adjourned until DATE .", "On DATE ORG ordered the applicant 's release to the custody of ORG on the same terms as the order of DATE .", "On DATE the applicant re - entered his judicial - review proceedings . On DATE evidence was heard from the ORG Leader , PERSON , on the applicant 's case and the applicant was placed in the care of the Board , subject to his attendance at ORG for practical and vocational education . The case was adjourned to DATE , on which date it was adjourned to DATE to await a progress report from ORG . On DATE the case was adjourned to the following day . On DATE the case was adjourned to DATE to allow proposals to be made by ORG .", "On DATE the High Court heard evidence from PERSON in relation to possible long - term accommodation and the case was listed for mention on DATE , on which date it was listed for mention on CARDINAL DATE to allow the ORG more time to find appropriate long - term accommodation . On DATE evidence was heard from PERSON and the case was listed for mention on DATE in order to give the ORG further time . On DATE the ORG informed ORG that suitable temporary accommodation was to be ready by DATE and the case was adjourned for further discussion to CARDINAL DATE , on which date ORG heard evidence from PERSON It was decided to maintain the care order in force and to adjourn the case until DATE .", "On DATE ORG was advised that the applicant had been moved to new short - term accommodation of ORG under CARDINAL-hour supervision . The report from ORG on the applicant was presented and the case was adjourned until DATE to allow for his progress to be assessed . On DATE the case was adjourned to DATE to allow the ORG time to prepare recommendations for the reduction of the supervision of the applicant . On DATE ORG ordered that the ORG 's recommendations be put in place . The recommendations referred to the proposed timing of the withdrawal of supervision , assisting the applicant to obtain his own accommodation and social welfare benefits , the continuation of all necessary social work support after the official care order expired and the informing of the ORG 's senior management and legal agent of the recommendations given the danger the applicant continued to pose to himself and to others .", "The applicant remained in the ORG 's accommodation until DATE when he returned to live in the same hostel in which he had stayed in DATE . On DATE his judicial review proceedings were adjourned to DATE . The applicant 's eighteenth birthday was on DATE . He stayed on in the hostel until DATE when he was removed to hospital after causing injury to himself .", "After discharge from the hospital he lived rough on the streets . Having been charged with minor offences he was then charged with more serious offences , was arrested and charged with , inter alia , threatening his uncle with a knife . He was remanded for trial and detained on remand in FAC . The outcome of those proceedings is not known .", "In his report dated DATE addressed to ORG , PERSON medical officer reported that the applicant had been seen by a medical officer on arrival and on several occasions in DATE . The applicant had complained of feeling depressed , especially at TIME , and was prescribed sleeping tablets . He was referred to a consultant psychiatrist , Mr ORG , who kept the applicant on his medication and considered that he was a troubled youth “ who felt it difficult to deal with prison life ” . The reporting medical officer himself saw the applicant on DATE , when he treated the applicant for a sprained ankle sustained while playing football . That officer again saw the applicant on DATE , when he was “ becoming frustrated and angry at his situation ” . That officer found him “ quite well ” and prescribed a mild sedative and night - time sedation and asked the visiting psychiatrist to review him . A consultant forensic psychiatrist had also seen the applicant .", "The report goes on to mention that that medical officer had no record of any input from the resident psychologist : the latter 's records were retained confidentially , it could not be assumed that the latter had had no input and the latter should be contacted for information concerning any proactive treatment carried out with the applicant of which that medical officer was not aware .", "Mr ORG completed a report on the applicant in DATE . He mentioned that he had seen the applicant twice : on DATE and CARDINAL DATE . During the interviews the applicant did not present any signs of “ major psychiatric illness either of a schizophrenic or depressive nature ” . There was no mention of how the applicant 's detention in PERSON impacted on him .", "The relevant provisions of the LAW are :", "LAW", "“ All citizens shall , as human persons , be held equal before the law . This shall not be held to mean that the ORG shall not in its enactments have due regard to differences of capacity , physical and moral , and of social function . ”", "LAW ( CARDINAL )", "“ The ORG guarantees in its laws to respect , and in as far as practicable , by its law to defend and vindicate the personal rights of its citizens . ”", "LAW ( CARDINAL )", "“ The ORG shall , in particular , by its laws protect as best it may from unjust attack and , in the case of injustice done , vindicate the life , person , good name and property of every citizen . ”", "LAW ( CARDINAL )", "“ No citizen shall be deprived of his personal liberty save in accordance with law . ”", "Article CARDINAL § CARDINAL", "“ The ORG shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative , and , when the public good requires it , provide other educational facilities or institutions with due regard , however , for the rights of parents , especially in the matter of religious and moral formation . ”", "Article CARDINAL § CARDINAL", "“ In exceptional cases , where parents for physical or moral reasons fail in their duty towards their children , the ORG as guardian of the common good , by appropriate means shall endeavour to supply the place of parents , but always with due regard for the natural and imprescriptable rights of the child . ”", "The DATE Act sets out the duties of a health board in relation to the care and protection of children residing in its administrative area . Section CARDINAL(CARDINAL ) defines a child as “ a person under DATE other than a person who is or has been married ” .", "Section CARDINAL provides , inter alia , as follows :", "“ CARDINAL . It should be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection .", "NORP In the performance of this function , a health board shall –", "( a ) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and coordinate information from all relevant sources relating to children in its area ;", "( b ) having regard to the rights and duties of parents , whether under LAW or otherwise –", "( i ) regard the welfare of the child as the first and paramount consideration , and", "( ii ) in so far as is practicable , give due consideration , having regard to his age and understanding , to the wishes of the child ; and", "( c ) have regard to the principle that it is generally in the best interests of a child to be brought up in a family . ”", "The relevant parts of section CARDINAL(CARDINAL)(a ) provide as follows :", "“ Where a health board has taken a child into its care under this section , it shall be the duty of the board –", "( a ) subject to the provisions of this section , to maintain the child in its care so long as his welfare appears to the board to require it and while he remains a child ... ”", "Section CARDINAL provides as follows :", "“ Where it appears to a health board that a child in its area is homeless , the board shall enquire into the child 's circumstances , and if the board is satisfied that there is no accommodation available to him which he can reasonably occupy , then , unless the child is received into care of the board under the provisions of this LAW , the board shall take such steps as are reasonable to make available suitable accommodation for him . ”", "The relevant parts of section CARDINAL provide as follows :", "“ ( CARDINAL ) Where a child is in the care of a health board , the health board shall provide such care for him , subject to its control and supervision , in such of the following ways as it considers to be in his best interests –", "...", "( b ) by placing him in residential care ( whether in a children 's residential centre registered under Part VIII [ of the DATE Act ] , in a registered home maintained by the health board or in a school or other suitable place of residence ) , or", "...", "( d ) by making such other suitable arrangements ( which may include placing the child with a relative ) as the health board thinks proper .", "...", "( CARDINAL ) Nothing in this section shall prevent a health board sending a child in its care to any hospital or to any institution which provides nursing or care for children suffering from physical or mental disability . ”", "The relevant parts of LAW provide as follows :", "“ CARDINAL . A health board shall make arrangements with the registered proprietors of children 's residential centres or with other suitable persons to ensure the provision of an adequate number of residential places for children in its care ;", "A health board may , with the approval of the Minister , provide and maintain a residential centre or other LOC for the provision of residential care for children in care . ”", "In DATE the ORG had CARDINAL high - support units in existence for children with serious behavioural and emotional problems between the ages of DATE . A unit in GPE had CARDINAL places and a unit in GPE had CARDINAL places . In DATE , approval was given by ORG to the ORG to plan and develop a CARDINAL special - care unit both in PERSON and in ORG . Subsequently , the matter was reviewed to allow consideration of the costs of these units and to assess the need for them . An expert consultant was appointed to consider such needs in DATE .", "The unit in ORG ( special - care unit ) was completed in DATE . Construction of the ORG unit ( a high - support unit ) was planned to commence in DATE and its completion envisaged by DATE . A special - care unit operates to a high standard of security whereas a high - support unit , while of similar design , operates to a lower standard of physical security .", "In DATE the ORG gave judgment in a case concerning the care of a minor with special needs ( minor suing through his mother and next friend PERSON v. the Minister for ORG , the Minister for Health , the Minister for Education , GPE , the Attorney General and ORG ( DATE ) CARDINAL NORP Law Reports DATE ) . That judgment pointed out as follows :", "“ First , ORG has already granted declaratory relief concerning the obligations of the ORG towards minors of the type with which I am dealing . In so doing it observed the LAW proprieties owed by ORG to the administrative branch of government . It went no further than making a declaration thereby affording an opportunity to the Minister to take the necessary steps to put matters right . But it expected those steps to be taken as soon as reasonably practicable .", "Secondly , if the declaration was to be of any benefit to the minors in whose favour it was made , the necessary steps consequent upon it has to be taken expeditiously . Otherwise the minors , most of whom are of DATE , would have achieved majority within DATE of the declarations being granted without any benefit being gained from them .", "Thirdly , the effect of a failure to provide the appropriate facilities must have had a profound effect on the lives of these minors and certainly put them at risk of harm up to and including the loss of their very lives .", "Finally , due regard should be had to the efforts made on the part of the Minister to address the difficulties to date . If the ORG were to take the view that all reasonable efforts had been made to deal efficiently and effectively with the problem and that the Minister 's response was proportionate to the rights which fell to be protected , then normally no order of the type sought ought to be made . ”", "[ The court orders ] the Minister for Health to make available to ORG sufficient funding to allow ORG to build , open and maintain a secure CARDINAL-bed High Security Unit at ORG , and the Minister for ORG to take all steps necessary and to do all things necessary to facilitate the building , opening and maintenance of a secure CARDINAL-bed High Security Unit at Portrane , Co. GPE . The said Unit to be in operation not later than DATE . ”", "PERSON came into being pursuant to LAW . LAW ) of that LAW foresaw the making of regulations providing for the management of that institution .", "These regulations deal with the management and functioning of the institution . Section CARDINAL provides that an inmate shall , in so far as the length of his sentence permits , be given such training and instruction and be subjected to such disciplinary and moral influences as will conduce to his reformation and the prevention of crime . Section CARDINAL provides that , subject to the inmate not being declared unfit by the medical officer , an inmate is to be allowed regular physical recreation and exercise and is to be given such regular physical exercise as may be necessary to promote his health and physical well - being . Section CARDINAL provides that , if the Governor is of the opinion that the receipt of letters and visits and the writing of letters by the inmates in addition to those already permitted outside of these regulations will promote the social rehabilitation of the prisoner , then he may permit the inmate to receive so many letters and visits and to write so many letters in addition to those already permitted other than by these regulations as the Governor thinks proper . Section QUANTITY of those regulations provides that :", "“ So much of the Rules for the Government of Prisons DATE ... and the Rules for the Government of Prisons DATE ... as are made under ORG and DATE shall , in so far as they are not inconsistent with these Regulations , apply and have effect in relation to inmates and the Institution in like manner as they apply and have effect in relation to prisoners and prisons . ”", "Male offenders aged DATE may be committed to PERSON either while on remand or after sentencing as it is considered to provide a more suitable environment for young offenders . The majority of male offenders aged DATE are held in PERSON . As at DATE , CARDINAL of the detainees were DATE . The regime is as liberal and relaxed as possible within the confines of a secure institution .", "Cells are unlocked at TIME when the inmates may collect breakfast and then return to their cells ; at TIME these are unlocked to permit the inmates to attend a place of employment or school ; at TIME they come back , collect lunch and return to their cells ; at TIME the inmates may attend a place of employment or school ; at TIME they come back , collect their TIME meal and return to their cells ; at TIME the cells are unlocked for TIME recreation ; at TIME the inmates come back , collect supper and return to their cells ; at TIME the cells are locked ; and at TIME the lights are switched off .", "All sentenced prisoners are required to work , although the workshops do not operate on a commercial basis as they are only for training purposes . The emphasis is on training in skilled or semi - skilled work .", "ORG is open DATE a week and has CARDINAL full - time staff and CARDINAL to CARDINAL full- and part - time students at any CARDINAL time on the education register . Along with work training , education comprises CARDINAL of the CARDINAL main activities for the inmates . A broad programme of education is emphasising literary and basic education , with classes on health and social education . The unit is equipped with computers , available for learning or for recreational purposes . Students may sit for State school examinations . Upon their arrival all inmates are asked if they wish to attend education classes . Attendance and level of participation is voluntary . Any special requests or particular needs would be regularly discussed by the teaching staff .", "Inmates are free to recreate during unlocked periods at DATE , on bank holidays , in DATE and when not attending work or education classes . Facilities include television , table games , a library , a gym and other games ( including football , pool and table football ) and a reading room . There are certain organised activities ( including gym , pool , football , quizzes and chess ) . DATE newspapers , magazines and other publications are also available to inmates together with sports kits and board games .", "In general , every prisoner is entitled to CARDINAL visit per week , but in practice visits are allowed more frequently where circumstances permit . Visits in open centres are unsupervised and may be granted on demand . Telephone calls are frequently demanded and permitted . Inmates serving sentences are generally allowed to send CARDINAL letters per week . NORP letters to family or to legal representatives may be allowed on request . An inmate awaiting trial may send out as many letters as he likes and there is no limit to the number of letters that he may receive .", "Particular emphasis is placed on the rehabilitation of young offenders in custody and , accordingly , a wide range of services are available . An education service is provided in conjunction with vocational education committees and teachers work in the prison on a full or part - time basis . Training in various vocational skills is available to offenders , including juveniles , with some inmates going on to take city and guilds examinations . Library facilities are provided in conjunction with the public library service and a range of publications including newspapers and magazines are available for recreational purposes . A range of sports and other recreational facilities are available . The prison psychology service together with the probation and welfare services participate in the positive management of sentences and provide counselling to help offenders to cope during custody . A medical service is available including a drug - detoxification programme together with addiction counselling , the latter of which is provided in conjunction with and by various outside agencies such as ORG and ORG .", "DATE to CARDINAL staff members are employed to facilitate and provide these educational and recreational services to inmates ." ]

[ "5" ]

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

[]

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

[ "5-1" ]

[]

[ "The applicant was born in DATE and lived until his arrest in the town of GPE .", "On DATE CARDINAL individuals attacked PERSON near his flat , beat him up and attempted to rob him . PERSON fought back and the attackers ran away .", "DATE the applicant was arrested on suspicion of having attempted to PERSON in conspiracy with PERSON and PERSON The arrest record indicated that he had been arrested for disorderly conduct . The applicant was placed in detention facility no . IZ-CARDINAL/CARDINAL .", "An investigator interviewed PERSON and PERSON who were drug addicts and were suffering from drug withdrawal syndrome . They confessed to robbery , committed with the applicant . According to the applicant , they had confessed because policemen had promised to supply them with drugs . The applicant insisted that in DATE and DATE Mr B. and PERSON had written statements confessing to the robbery after the policemen had given them drugs .", "On DATE emergency doctors visited Mr V. The medical report of DATE showed that PERSON was a drug addict and that he had been provided with medical assistance . On DATE and DATE the emergency doctors examined Mr B. He was diagnosed with drug addiction and withdrawal syndrome . Medical assistance was provided .", "On DATE the applicant had a confrontation interview with PERSON who stated that CARDINAL men wearing balaclava masks had attempted to rob him on DATE . Mr I. noted that the applicant was of the same height as one of the attackers . The applicant did not dispute Mr I. ’s submissions and did not ask any questions .", "While being questioned by the investigator the applicant admitted that he had intended to beat Mr I. up because a friend had asked him to do it . He denied that he had ever attempted to rob Mr I. The applicant maintained that testimony at the trial .", "On DATE the applicant was committed to stand trial before ORG of Ivanovo .", "A lawyer representing PERSON successfully asked ORG to examine the medical report of DATE indicating that PERSON was a drug addict .", "At the trial PERSON and PERSON retracted their confessions made during the pre - trial investigation . They claimed that they had confessed to the robbery under the influence of drugs and in the absence of a lawyer . They insisted that on DATE they had met PERSON but had merely intended to beat him up and had had no intention of robbing him .", "Mr I. did not attend the trial and ORG found that there were “ good reasons ” for his absence . The Government , relying on a written statement by a ORG secretary , submitted that on DATE Mr I. had notified the secretary by telephone that he had not been able to attend the trial hearings as he had been in another country . PERSON had confirmed his statements made during the pre - trial investigation . The Government also produced a written statement issued on DATE by a lay assessor who had sat in the applicant ’s case . According to the lay assessor , PERSON wife informed her by telephone that PERSON had left GPE and had been unable to come back before DATE .", "At the hearing on DATE ORG read out depositions made by PERSON on DATE and DATE . The court record indicated that ORG had not asked the applicant or his lawyer whether they had agreed to the reading of the depositions . According to the depositions , on DATE Mr I. opened the entrance door and saw CARDINAL men wearing balaclava masks . CARDINAL of them hit him in the face . Mr I. attempted to close the door but an attacker followed him into the flat . The entrance door of the flat accidentally closed and other perpetrators could not enter . PERSON fought the attacker , opened the entrance door and was able to push the attacker out of the flat . After he had opened the door , he saw another man , whom he identified as the applicant . The applicant hit PERSON with the handle of a gun and ran away . PERSON claimed that the attackers had intended to rob him .", "ORG summonsed CARDINAL witnesses , PERSON , PERSON and Mr PERSON and PERSON attended the trial and testified that on DATE , DATE of the alleged robbery , they had seen CARDINAL men running but had not been able to identify them . Mr T. , who lived in GPE , did not appear at the trial and his depositions made during the pre - trial investigation were read out . His statements were identical to those given by PERSON and PERSON S.", "On DATE the ORG of GPE found the applicant guilty of aggravated robbery and sentenced him to DATE and CARDINAL months’ imprisonment . The court issued a confiscation order in respect of the applicant ’s property .", "The ORG based its judgment on the depositions by PERSON made during the pre - trial investigation , the testimony by PERSON L. and Mr S. , the deposition by PERSON made during the pre - trial investigation , the confession statements made by PERSON and PERSON during the pre - trial investigation , and the applicant ’s statements in which he had admitted that on DATE he had visited Mr I. but had not robbed him . ORG noted that it had not been established of what property the defendants had intended to PERSON", "ORG rejected the co - defendants’ arguments that they had confessed in a state of drug intoxication . It noted that there was no indication that Mr PERSON and PERSON had been forced to confess or that they had been administered drugs to induce them to admit their guilt . Throughout the pre - trial investigation they had given consistent and detailed statements in the presence of attesting witnesses and their interviews had been recorded on video . ORG watched those video recordings . The defendants had appeared to be in a normal state of health and had no longer claimed that they had been drugged .", "On DATE and DATE the applicant and his lawyer filed appeal statements against the judgment of DATE . They complained , inter alia , that ORG had based the conviction on the depositions by PERSON and PERSON given during the pre - trial investigation .", "On DATE ORG upheld the judgment of DATE , endorsing the reasons given by ORG . In particular , it noted that ORG had rightfully convicted the applicant on the basis of the statements given by PERSON and PERSON", "On DATE the Presidium of ORG , on a supervisory review , reduced the applicant ’s sentence to DATE and CARDINAL months’ imprisonment , having regard to the fact that the gravity of the offence did not correspond to the severity of the sentence .", "The applicant submitted that on DATE , on an order of the director of detention facility no . IZ-CARDINAL/CARDINAL , warders had entered cell no . CARDINAL where he had been detained . The warders , hitting the inmates with rubber truncheons , forced them to leave the cell . In the corridor they continued hitting the applicant with rubber truncheons . The applicant fell on the floor and the beatings continued . After the beatings stopped , he crawled into his cell . TIME he felt extreme pain and his fellow inmates asked for a prison doctor . The applicant was taken to a hospital where doctors removed his spleen .", "According to the Government , on DATE the applicant took part in a prison disobedience action . They relied on written statements by warders , including the warder PERSON . , and a report issued on DATE by the head of the task unit of detention facility no . IZ-CARDINAL/CARDINAL . The report , in its relevant part , read as follows :", "“ On DATE , at TIME , a junior inspector , senior sergeant of the internal service PERSON , who was on duty , ... raised the alarm and informed a senior lieutenant of the internal service Mr GPE ... that detainees in cell no . CARDINAL were attempting to kick the cell door out , banging on it with boots , metal plates and cups . On an order of the senior lieutenant of the internal service Mr GPE , a group of off - duty warders ... went to cell no . CARDINAL ... Upon their arrival , a senior lieutenant of the internal service Mr Pa ... ordered the detainees to stop their unlawful actions and warned them that force might be used if they did not comply with the lawful order . However , the inmates ignored the order of the facility administration and continued their collective disobedience actions . Moreover , [ inmates ] in certain other cells ... supported the actions of the inmates of cell no . CARDINAL [ and ] also started knocking on the doors , which could have turned into a prison riot .", "The facility director , who by TIME had received full information on the incident involving inmates in cell no . CARDINAL , raised a general alarm and ordered that the senior lieutenant of the internal service Mr GPE repeat his orders and warn the detainees of special means and consequences if they did not comply .", "After the repetition of the administration ’s orders and the warning of the possible use of force had no effect on the detainees , the facility director decided to carry out a special operation in respect of the detainees in cell no . DATE . In the presence of a group of medical staff members , the group of off - duty warders , other staff members who had gathered on an alarm signal and had been equipped accordingly , the cell door was opened and the detainees were requested to stop their active demonstration of discontent , to leave the cell [ and ] go into the corridor . In response to that lawful order the inmates climbed on to the upper bunks , refusing to leave the cell . They accompanied their actions with obscene and defamatory language towards the representatives of the facility administration . After rubber truncheons PR-CARDINAL had been applied to certain detainees who had clearly refused to comply , all the inmates went into the corridor . In the course of a discussion they did not raise any complaints nor did they substantiate claims against the facility administration which could serve as objective justification for confrontation ... Inmates who had been allowed to return to the cell stopped their disorderly actions . Detainees in other cells followed their lead .", "It was established in the course of the investigation pertaining to that incident that the majority of the inmates in cell no . DATE had not known the real reasons for the disorderly actions when those actions had started , assuming that the flame of discontent had been fanned by the appalling ( according to them ) conditions of detention in the cell and [ they ] had taken part in those actions obeying exclusively the feeling of corporate solidarity . Secret operative measures taken with the purpose of establishing the true reason for the conflict allowed the conclusion that a voice message from an inmate of a cell on the lower floor about beatings of another inmate , Mr NORP , by warders , which took place at the same time ... served as an incentive for the beginning of the collective disobedience ....", "As it follows from the inmates’ explanations , most of them heard orders addressed to them to stop disorderly actions and warnings that special measures would be used , but they did not react in any way .", "As a result of the selective application of rubber truncheons by the warders injuries were sustained by ... and Mr PERSON ... who were examined and received the necessary assistance from medical personnel of the facility .", "The investigation showed that the facility personnel in that situation had acted firmly , without compromise , taking the special measures promptly , without delay and in compliance with requirements of paragraph CARDINAL of LAW [ of LAW ] ... , that is as it was required in the situation at hand , which was of a complicated nature since the actions of the detainees from cell no . CARDINAL had been supported by detainees from other cells and other preventive measures of a non - violent nature had appeared to be ineffective . ”", "The Government submitted a record of the applicant ’s medical examination drawn up on DATE by the prison dermatologist . The record stated that the applicant had had bruises on his legs and CARDINAL linear bruises on the back and the left side of the small of his back . The bruises measured QUANTITY in width and QUANTITY in length .", "The Government , relying on an extract from the applicant ’s medical record , further stated that on TIME of DATE the applicant had been taken to the surgical division of the prison hospital and had been diagnosed with “ a blunt chest injury , a splenic rupture , hemoperitoneum , first - degree shock , and an injury to the small of the back ” . Doctors discovered signs of internal bleeding and decided to remove the spleen . TIME the applicant underwent surgery . He remained in the hospital until DATE and was transferred to the medical department of detention facility no . IZ-CARDINAL/CARDINAL in “ a satisfactory state of health ” .", "On DATE the facility administration informed the GPE regional prosecutor ’s office that on DATE force had been used against inmates , including the applicant .", "An assistant of ORG carried out an inquiry . On DATE he issued a report , refusing to institute criminal proceedings as there had been nothing criminal in the warders’ actions . The relevant part of the report read as follows :", "“ On DATE , at TIME , before placement in a punishment cell , warders of the detention facility searched a detainee , Mr NORP [ He ] resisted and as a result , force was used against him and forbidden correspondence was seized . Mr NORP shouted loudly that the warders were beating him up , urging inmates to knock on their cell doors and protest . Detainees supported him , thus violating the detention rules , and [ inmates ] in cell no . CARDINAL , in particular , started banging hard on the cell door . At TIME a junior inspector of the task and guard unit , PERSON , sounded the general alarm in the facility .", "As follows from statements of staff members of the detention facility , ... on DATE , after the general alarm signal at TIME they arrived in cell no . DATE , whose inmates were banging hard on the door . The detainees did not comply with repeated orders to stop their unlawful actions . The same orders and warnings of the possible use of special measures made by PERSON through the door grille also had no result . On an order of the director of the detention facility , PERSON . , the cell door was opened at TIME and the detainees were requested to go into the corridor . That order was lawful , taking into account the aggressive state of the inmates , the possibility of their attacking the warders , taking possession of cell keys and weapons , and taking hostages . Furthermore , the detention regime required a TIME roll - call of the detainees . The inmates refused to comply with the order . In that situation [ the warders ] decided to force the inmates into the corridor . CARDINAL inmates , including Mr PERSON , urged their fellow detainees not to leave the cell , [ he ] actively disobeyed , swinging his arms and pushing warders Mr PERSON . and PERSON . , away , and did not respond to repeated orders to stop those unlawful actions . Following Mr PERSON . ’s repeated warnings about the possible use of special measures , [ Mr PERSON ] continued his actions . Mr PERSON . hit Mr PERSON with a rubber truncheon CARDINAL to CARDINAL times on the back and legs , after which Mr PERSON was taken out of the cell into the corridor .", "The fact that the special measures were used is confirmed by statements of facility warders and their reports , as well as an official record of the use of special measures and an official record of the medical examination of Mr PERSON by a medical committee consisting of CARDINAL persons . According to that record , Mr PERSON had injuries to his knees and feet and CARDINAL red linear bruises on the back and the left side of the small of the back .", "The head of the medical department of the detention facility , PERSON , and a dermatologist , PERSON . , stated that at TIME on DATE Mr PERSON had asked for medical assistance , complaining of pain in the left subcostal area . After a consultation with a surgeon from the prison hospital Mr PERSON was transferred to the hospital .", "According to statements by the head of the surgical division of the prison hospital PERSON . and the medical record , on DATE , at TIME , Mr PERSON underwent surgery and his injured spleen was removed .", "In an interview Mr PERSON stated that on DATE he had been woken up at TIME before the TIME roll - call ... He heard his inmates banging on the cell door . Soon afterwards warders entered the cell and forced everyone into the corridor . At that time he was near his sleeping place . A warder hit him several times with a rubber truncheon on the back and forced him into the corridor , where other warders also hit him numerous times on his back with rubber truncheons . He did not resist in any way and did not urge [ inmates ] to resist the warders .", "As a result of the investigation , Mr PERSON ’s statements were not confirmed and they are of a contradictory nature . In particular , Mr PERSON could not explain the discrepancies between his arguments about the numerous blows and the results of the medical examination . Moreover , he was examined in the course of the prosecutor ’s investigation on DATE , and no other injuries , save for those recorded in the report of the medical examination , were discovered .", "The detainees , PERSON . , PERSON .... and PERSON did not see how the special measures were applied to PERSON , stating that on DATE , before the morning roll - call , they had knocked at the cell door . [ They ] did not comply with the warders’ orders [ and ] did not stop their actions . [ They ] were warned about the possible use of special measures .", "Thus , taking into account the facts and the results of the investigation , it is necessary to note that a special measure , namely a rubber truncheon , was applied by PERSON . to Mr PERSON lawfully and in accordance with the requirements of LAW [ of LAW ] ... ”", "Following the prosecutor ’s refusal to institute criminal proceedings , the applicant lodged an action against ORG and ORG seeking compensation for damage caused by the use of force on DATE . He also argued that the prosecutor ’s office had unlawfully refused to institute criminal proceedings against the warders .", "On DATE ORG of GPE accepted the applicant ’s action in part and awarded him MONEY ( RUB , MONEY ) . ORG cited the assistant prosecutor ’s decision of DATE in support of its finding that the use of force against the applicant had been lawful . ORG further noted that the applicant had sustained serious damage which threatened his life . It observed that while using special measures such as rubber truncheons and physical force , warders should have ensured that the applicant sustained minimal damage . ORG concluded that the detention facility , as a legal person , did not have sufficient control over whether the staff members performed their work safely . The applicant had sustained physical and moral suffering and compensation should therefore be paid .", "On DATE ORG confirmed ORG findings . However , it increased the amount of compensation to RUB CARDINAL ( CARDINAL ) .", "Detainees and the LOC where they live may be searched ( LAW and CARDINAL ) .", "Physical force , special means or weapons may be used against detainees if they offer resistance to the officers , persistently disobey lawful demands of the officers , engage in riotous conduct , take part in mass disorders , take hostages , attack individuals or commit other publicly dangerous acts , escape from the penitentiary institution or attempt to harm themselves or others ( LAW ) . The procedure for application of these security measures is determined in NORP legislation ( Article CARDINAL § CARDINAL ) .", "When using physical force , special means or weapons , the penitentiary officers must :", "( CARDINAL ) NORP state their intention to use them and afford the detainee(s ) sufficient time to comply with their demands unless a delay would imperil life or limb of the officers or detainees ;", "( CARDINAL ) NORP ensure the least possible harm to detainees and provide medical assistance ;", "( CARDINAL ) report every incident involving the use of physical force , special means or weapons to their immediate superiors ( section CARDINAL ) .", "Rubber truncheons may be used to", "( CARDINAL ) stop assaults on officers , detainees or civilians ;", "( CARDINAL ) NORP repress mass disorder or group violations of public order by detainees , as well as to apprehend ( задержание ) offenders who persistently disobey or resist the officers ( section CARDINAL ) .", "Rubber truncheons may be used in the following cases :", "- to repel an attack on a staff member of a detention facility or on other persons ;", "- to repress mass disorder or put an end to collective violations of the detention regime ;", "- to put an end to a refusal to comply with lawful orders of facility administration and warders ;", "- to release hostages and liberate buildings , rooms and vehicles taken over by a detainee ;", "- to prevent an escape ;", "- to prevent a detainee from hurting himself ( section DATE ) .", "Article CARDINAL § CARDINAL of LAW of GPE provides that the damage caused to the 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 .", "Article CARDINAL § CARDINAL ( f ) of LAW of the Russian Federation makes acts of torture punishable by DATE imprisonment . Pursuant to LAW ( a ) and ( в ) the abuse of official power associated with the use of violence or entailing serious consequences carries a punishment of up to CARDINAL years’ imprisonment .", "The RSFSR Code of Criminal Procedure ( in force until DATE , “ the CCrP ” ) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities’ own initiative when there were reasons to believe that a crime had been committed ( Articles CARDINAL and CARDINAL ) . A prosecutor was responsible for general supervision of the investigation ( ORG CARDINAL and CARDINAL ) . He could order a specific investigative action , transfer the case from CARDINAL investigator to another or order an additional investigation . If there were no grounds to initiate a criminal investigation , the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party . The decision was amenable to an appeal to a higher prosecutor or to a court of general jurisdiction ( LAW .", "Article CARDINAL of the RSFSR Code of Criminal Procedure provided that a conviction could not rest solely on the admission of the accused ." ]

[ "3", "6" ]

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

[ "6-3-d" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE a person was stopped for questioning in connection with an offence against the General PERSON ( PERSON ) of GPE . He had no proof of his identity on his person .", "NORP The police officer identified the person as the applicant from a police photograph . The applicant was fined MONEY ( ORG ) for not being able to show proof of identity . The fine was not paid , and the applicant was summoned to appear before ORG judge ( kantonrechter ) of GPE to answer a charge of failing to present an official identity document ( see paragraph CARDINAL below ) .", "On DATE the applicant appeared before ORG judge . He claimed to be innocent , suggesting that the culprit might have been his brother . He stated that he had been acquitted of similar charges several times before . ORG judge then adjourned the hearing in order to enable the reporting police officer and the applicant to check an identity photograph together . The applicant gave a mobile telephone number so that an appointment could be made .", "On DATE instructions were sent on the public prosecutor 's behalf to the police for the applicant to be shown the police identity photograph , a new official record to be made and a photograph of the applicant and if possible his brother also to be attached thereto .", "On DATE a police officer drew up an official record of his various attempts to contact the applicant by telephone ; he had been met with a recording of the voice of a man asking callers not to leave any messages because he had insufficient prepaid credit to listen to them and call back . The Government state that the police officer who had first identified the applicant ( paragraph CARDINAL above ) wished to persist in his statement that he had recognised the accused as the applicant from the photograph in the possession of the police . Clear police photographs of the applicant and his brother , which the Government state show that there was little resemblance between them , were dispatched in addition .", "The hearing was resumed on DATE at TIME . The applicant had been summoned in writing but failed to turn up in time to take part . ORG judge then tried him in absentia , convicted him and sentenced him to a fine of ORG DATE one day 's detention in lieu . Judgment was given orally . The official record of delivery reads as follows :", "“ OFFICIAL RECORD OF DELIVERY OF ORAL JUDGMENT ( AANTEKENING MONDELING VONNIS )", "Judgment given by ORG judge C. on DATE in the case against the accused", "Name : PERSON", "First names : PERSON", "Born on : CARDINAL DATE in GPE ( GPE )", "Address : [ etc . ]", "Place of residence : Delft", "Defended case , [ accused ] failed to turn up after adjournment", "QUALIFICATION :", "Minor offence defined in LAW ) , section CARDINAL of LAW ( Wet op de identificatieplicht )", "COMMITTED :", "on DATE", "DECISION :", "Fine of EUR DATE or DATE detention in lieu", "The judge states that for lodging an appeal this case is subject to a special procedure , the so - called leave - to - appeal system .", "( signed ) ORG judge ”", "NORP The applicant lodged an appeal the same day by filling in a form at the registry . He stated his reasons for wishing to appeal as follows :", "“ I did not attend the hearing because :", "I was mistaken about the time . I thought it was at TIME ...", "I would have wished to put forward the following :", "I am not the person who committed the offences . I have been acquitted CARDINAL or CARDINAL times already because someone else is misusing my identity . ”", "On DATE a single - judge chamber of ORG ( gerechtshof ) of GPE sitting as President gave a decision refusing the applicant leave to appeal . It contains the following reasoning :", "“ In view of the case file , which includes an extract from the criminal register ( justitiële documentatie ) , the President does not consider plausible the applicant 's statement that his identity details are systematically misused by someone else and that he has been acquitted by the courts several times already because of that .", "The President is not aware of any other reasons for which the interests of the proper administration of justice require the case to be heard in appeal . ”", "The judgment of ORG judge thus became final .", "The extract from the criminal register as contained in the case file of the single - judge chamber of ORG shows that the applicant has been convicted of crimes from his early adulthood until recently . He has also submitted authentic copies of official records of oral delivery of recent summary judgments of ORG . These are dated DATE , DATE , DATE , CARDINAL DATE and DATE . They give no details of the cases other than that they ended in acquittals .", "In its relevant part , Article PERSON of LAW provides as follows :", "“ CARDINAL . If an appeal is possible and has been lodged against a judgment concerning CARDINAL or more minor offences ( overtredingen ) or indictable offences ( misdrijven ) which , according to the statutory description , carry a sentence of imprisonment not exceeding DATE , and no other sentence or measure has been imposed than a fine not exceeding DATE or , if CARDINAL or more fines have been imposed in a single judgment , not exceeding a combined maximum DATE of ORG CARDINAL , the appeal lodged shall only be heard and considered if , in the considered opinion of the President , such is required in the interests of the proper administration of justice . ... ”", "This provision entered into force on DATE .", "Section CARDINAL of LAW ( Wet op de identificatieplicht ) requires every person aged DATE or over to present an official identity document to a police officer upon first demand . LAW ) makes failure to do so a minor offence punishable by a second - category fine ( i.e. not exceeding , at the relevant time , ORG CARDINAL,CARDINAL ) .", "Section CARDINAL of ORG ) Ordinance provides as follows :", "“ In relation to minor offences , the following shall be information for the record :", "a. the information mentioned in sections CARDINAL and GPE ) of cases in which the public prosecution service has taken a decision to settle the case , with the exception of a decision to hand out a penal order ( strafbeschikking ) in which only a fine is imposed to an amount of less than ORG CARDINAL and a decision not to pursue the prosecution , unless the latter decision is made subject to conditions ;", "b. the information mentioned in sections CARDINAL and GPE ) of cases in which a court has given a decision , whether final or not , in so far as a penal community service order ( taakstraf ) or a custodial sentence other than in lieu of a sentence of another kind ( vrijheidsstraf anders PERSON vervangende ) has been imposed , or a fine of at least EUR CARDINAL , and in those cases in which an additional penal measure ( bijkomende straf ) has been imposed . ”", "Section CARDINAL of the ordinance sets out the information identifying the convicted person that is to be recorded ; section CARDINAL(CARDINAL ) sets out the information required to record the criminal act concerned , the decision of the public prosecution service or the court as the case may be and the execution of the sentence or other penal measure .", "Article CARDINAL of LAW , in its relevant part , provides as follows :", "“ CARDINAL . Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law . ”", "On DATE ORG of ORG adopted Views under LAW of LAW to LAW . CARDINAL/CARDINAL ( PERSON Henricus Mennen v. The GPE ) . These Views included the following ( footnote references omitted ) :", "“ Consideration of the merits", "CARDINAL ORG has considered the present communication in the light of all the information made available to it , as provided under article CARDINAL , paragraph CARDINAL , of the Optional Protocol .", "CARDINAL NORP As to the author 's claim that he has not been able to exercise his right to appeal under article CARDINAL , paragraph CARDINAL , in an effective and meaningful way , since he did not have access to a duly reasoned , written judgment of the trial court and to other documents such as trial transcripts , the ORG notes that the ORG party confirmed that in the present case no such document had been produced . The ORG notes ORG submission that the author 's counsel was provided with a number of official police reports on the case prior to his application for leave to appeal , without specifying their content and relevance to the verdict . ORG , however , observes that these reports could not have provided guidance as to the motivation of the first instance court in convicting the author of a criminal offence , nor indication on what particular evidence the court had relied . The ORG recalls its established practice that in appellate proceedings guarantees of a fair trial are to be observed , including the right to have adequate facilities for the preparation of his defence . In the circumstances of the instant case , the ORG does not consider that the reports provided , in the absence of a motivated judgment , a trial transcript or even a list of the evidence used , constituted adequate facilities for the preparation of the author 's defence .", "CARDINAL The ORG further notes that , according to ORG , the President of ORG denied leave to appeal with the motivation that a hearing of the appeal was not in the interests of the proper administration of justice and that counsel 's contentions were not supported in law . ORG considers this motivation inadequate and insufficient in order to satisfy the conditions of article CARDINAL , paragraph CARDINAL , of the LAW , which require a review by a higher tribunal of the conviction and the sentence . Such review , in the frame of a decision regarding a leave to appeal , must be examined on its merits , taking into consideration on the one hand the evidence presented before the first instance judge , and on the other hand the conduct of the trial on the basis of the legal provisions applicable to the case in question .", "CARDINAL Accordingly , in these specific circumstances , the ORG finds that the right to appeal of the author under article CARDINAL , paragraph CARDINAL , of the LAW has been violated , due to failure of ORG to provide adequate facilities for the preparation of his defence and conditions for a genuine review of his case by a higher tribunal .", "ORG , acting under article CARDINAL , paragraph CARDINAL , of LAW to LAW , is of the view that the facts before it reveal violation of article DATE , paragraph CARDINAL , of the LAW . ”" ]

[ "6" ]

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

[ "6-3-c" ]

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[ "On DATE the NORP police were informed via ORG that on DATE in PERSON ( GPE , GPE ) E.P. , a NORP citizen , and GPE , an NORP citizen , had been killed and that the applicant , who at that time lived in GPE , was suspected of having killed and robbed them . A warrant of arrest was issued against the applicant in GPE .", "On DATE the applicant , who in the meantime had returned to GPE , was arrested and on DATE was remanded in custody . The applicant remained on remand until DATE . This period was interrupted from CARDINAL May to DATE and from DATE to CARDINAL DATE whilst the applicant served prison sentences imposed in respect of previous convictions .", "Meanwhile the trial against the applicant took place before the PERSON of the Innsbruck ORG sitting with a jury . On DATE the jury acquitted the applicant , but the bench of ORG set aside the jury ’s verdict as erroneous . A new trial against the applicant and CARDINAL co - accused was held before ORG of ORG .", "On DATE ORG again acquitted the applicant . The jury answered the question as to murder and the question as to aggravated robbery with CARDINAL votes of “ no ” and CARDINAL votes of “ yes ” . According to the record of the jury ’s deliberations , the majority of its members found the applicant not guilty as there had been discrepancies between the statements of the witnesses ( “ Widersprüche in den LOC ) .", "On DATE the ORG sitting with a single judge heard the applicant in private on his claim for compensation in respect of his detention on remand . The applicant , assisted by counsel , argued that the proceedings under LAW ( Strafrechtliches Entschädigungsgesetz ) infringed the presumption of innocence guaranteed by LAW . He referred to the GPE v. GPE judgment of ORG DATE , Series A no.CARDINAL-A ) . The applicant also presented fresh evidence which , in his opinion , could entirely dissipate the suspicion still subsisting against him .", "On DATE a chamber of ORG , composed of CARDINAL judges , dismissed the applicant ’s compensation claim . ORG found that a right to compensation in the applicant ’s case would require that the suspicion against him had been entirely dissipated . According to the records of the jury ’s deliberations , a majority of the members had found the applicant not guilty on the grounds that there had been discrepancies between the statements of witnesses . The applicant was not acquitted because his innocence had been proven , but because he had been given the benefit of the doubt . Thus , the suspicion against the applicant had not been dissipated . As regards the applicant ’s request for the taking of evidence , ORG found that it was prevented from examining further evidence . It referred in this respect to ORG case - law following the PERSON judgement , according to which a fresh examination of the question of guilt in compensation proceedings following a final acquittal would be in breach of LAW .", "On DATE the applicant appealed against this decision . He submitted , inter alia , that ORG had re - examined ORG acquittal . However , it was no longer acceptable to rely on suspicions once an acquittal had become final .", "On DATE ORG , sitting in camera , dismissed the applicant ’s appeal . It found that a suspicion of having committed a criminal offence is only dissipated if either the claimant ’s innocence has been proven , or if all arguments supporting the suspicion against him have been refuted . The right to compensation demands that innocence be established . However , this requirement was not met in the applicant ’s case . Referring to ORG decision , ORG found that the records of the jury ’s deliberations clearly expressed the opinion of the members of the jury . In their mind various circumstances spoke against the applicant , but it had not been possible to convict him because of discrepancies between the statements of witnesses .", "ORG concluded that , according to the PERSON judgment of ORG , a fresh examination of the question of guilt in the compensation proceedings following a final acquittal would have been in breach of LAW , but not the refusal of compensation itself . ORG had not re - examined the question of the applicant ’s guilt , rather it had referred to the reasons for which the majority of the jury had voted “ not guilty ” , and had concluded that the suspicion against the applicant had not been dissipated .", "The relevant provisions of LAW ( Strafrechtliches Entschädigungsgesetz ) read as follows :", "“ ( CARDINAL ) A right to compensation arises : ...", "( b ) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in GPE ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or prosecution is excluded on other grounds , in so far as these grounds existed when he was arrested ; ... ”", "“ ... ( CARDINAL ) A court which acquits a person or otherwise frees him from prosecution ... ( section CARDINAL ( CARDINAL ) ( b ) or ( c ) ) must decide either of its own motion or at the request of the individual in question or the public prosecutor ’s office whether the conditions of compensation under section CARDINAL ( CARDINAL ) ( b ) or ( c ) , ( CARDINAL ) and ( CARDINAL ) have been satisfied or whether there is a ground for refusal under section CARDINAL ... If the investigating judge decides to discontinue the proceedings , ORG concerned shall rule .", "( CARDINAL ) NORP Before ruling , the court shall hear the detained or convicted person and gather the evidence necessary for its decision where this has not already been adduced in the criminal proceedings ...", "( CARDINAL ) Once the judgment rendered in the criminal proceedings has become final , the decision , which need not be made public , must , as part of the proceedings provided for in paragraph CARDINAL , be served on the detained or convicted person personally and on the public prosecutor ...", "( CARDINAL ) The detained or convicted person and the public prosecutor may appeal against the decision to a higher court within DATE .", "( CARDINAL ) The court with jurisdiction to rule on the appeal shall order the criminal court of first instance to carry out further investigations if that is necessary for a decision . If the court which has to rule is the court of first instance , the investigations shall be carried out by the investigating judge .", "( CARDINAL ) Once the decision has become final , it is binding on the courts in subsequent proceedings . ”", "As a general rule , there is no public hearing in ORG . ORG rules after sitting in private .", "NORP In its judgment of DATE ( VfSlg CARDINAL ) ORG dismissed the application filed by ORG to have LAW b ) of LAW annulled as being unconstitutional . It found that section CARDINAL ( CARDINAL ) ( b ) as such did not violate LAW which , under NORP law , has the force of constitutional law . In the light of the GPE v. GPE case ( judgment of DATE , Series A no . CARDINAL-A ) , it held that it was not the refusal of a claim for compensation which was contrary to the Convention , but the re - examination of the question of guilt after a final acquittal . In ORG view only the separate re - assessment of evidence on the basis of the contents of the whole court file was likely to infringe the presumption of innocence . Nevertheless , ORG observed that it would be desirable to amend LAW ( b ) of the DATE Act in order to clarify the law ." ]

[ "6" ]

[ "6-2" ]

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