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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant met with PERSON . , who tried to bribe him . When the applicant refused to take the bribe , PERSON . threw a package of money into his car and retreated . Following this , strangers in plain clothes ( who later turned out to be police officers ) got into the applicant ’s car and without any introduction started wrenching his arms behind his back . CARDINAL of the officers sat behind the applicant and started strangling him . CARDINAL others punched the applicant in the lower back . Then the applicant was handcuffed . CARDINAL of the officers stretched the applicant out , hooked his finger in the applicant ’s mouth and started pulling on his cheek . In acute pain , the applicant bit the officer ’s finger . The officer concerned punched the applicant CARDINAL times in the head , while another officer punched the applicant in the jaw . Then they pulled the applicant out of his car , threw him to the ground and started kicking him in the kidney area . This scene was witnessed by the applicant ’s wife .", "NORP The police officers placed the applicant in the car with his cuffed hands between his legs and his head on the seat of the car . The officer who had been bitten by the applicant covered the applicant ’s head with the hood of his jacket and sat on it . The applicant started suffocating and lost consciousness .", "The applicant was then taken to ORG , where the investigator explained to him that he had been arrested for taking a bribe . The investigator suggested to the applicant that they might “ come to an agreement ” and ignored his complaints of violence on the part of the police officers . The applicant also complained of an acute headache and dizziness during the questioning , which lasted for TIME . Then the applicant was taken to the prosecutor ’s office , where the prosecutors questioned him about the events of DATE . Following this , the applicant was released under a written undertaking not to abscond .", "On DATE the applicant was apprehended by the police in the street and taken to ORG for questioning on suspicion of swindling and instigation to bribery . The same day the applicant gave a written obligation not to abscond .", "At TIME on DATE the applicant complained to ORG of having been ill - treated by police officers during his arrest . He received a hospital referral for a medical examination . The police also questioned CARDINAL eyewitnesses and CARDINAL testifying witness , who had been present at the time of the applicant ’s arrest .", "On DATE the applicant underwent a medical examination . According to the certificate of ORG No . CARDINAL of DATE , the applicant ’s injuries included the following : closed head trauma , bruises , brain injury , and soft tissue injuries to the chest and lower back . These injuries were classified as being of “ medium severity ” .", "On DATE criminal proceedings were instituted against the applicant for swindling and instigation to bribery . These proceedings were terminated on DATE for lack of proof .", "On DATE the applicant lodged a complaint with ORG against the police officers who had ill - treated him .", "DATE the applicant underwent in - patient treatment and DATE he also received out - patient treatment for his injuries .", "On DATE ORG received the applicant ’s above - mentioned complaint .", "On DATE ORG received the complaint .", "On DATE ORG refused to institute criminal proceedings for lack of corpus delicti in the actions of the police officers . The decision mentioned that CARDINAL police officers , who had arrested the applicant , had been questioned and had testified that during the arrest the applicant had behaved violently , shouted at them and then fallen on the ground where he had started hitting himself against the ground in an attempt to cause himself bodily injuries . It further indicated that there were testimonies of other witnesses to the incident . It lastly mentioned that the applicant was in hospital , but that this could be considered an attempt to avoid liability for the crime he had committed .", "On DATE ORG for ORG drew up an expert opinion on the applicant ’s injuries . The opinion noted that the injuries had been caused by hard objects and could have been caused in the circumstances described by the applicant .", "On DATE , upon a complaint by the applicant , ORG quashed the decision of DATE on the ground that the applicant ’s allegations had not been verified in full . It referred the case to ORG for further inquiries .", "On DATE ORG received the applicant ’s criminal complaint , together with a copy of the expert opinion of DATE .", "On DATE ORG refused to institute criminal proceedings against the police officers for lack of corpus delicti in their actions . The reasoning of the decision was similar to that of DATE .", "On DATE ORG instituted criminal proceedings in connection with the infliction of bodily harm of medium severity on the applicant .", "On DATE the criminal proceedings were transferred to PERSON , which had territorial jurisdiction . The police investigator questioned the applicant , his wife and son and the police officers who had arrested the applicant . According to the Government , the investigator held confrontations between the applicant and the police officers . According to the applicant , the confrontations were ordered but not conducted .", "On DATE ORG for ORG drew up an expert opinion classifying the applicant ’s injuries as being of medium severity .", "According to the Government , on DATE the investigator conducted an on - site reconstruction of events with the applicant ’s participation . According to the applicant , he did not participate in the reconstruction .", "On DATE the criminal proceedings were suspended due to the failure to establish a perpetrator .", "On DATE , upon a complaint by the applicant , ORG quashed the decision of CARDINAL DATE and remitted the case to ORG for further investigation .", "On DATE the criminal proceedings were resumed . The investigator conducted an on - site reconstruction of events with all those involved in the incident . The investigator also seized all the medical documentation concerning the applicant ’s treatment after the accident .", "On DATE the investigator ordered a comprehensive medical report to be drawn up by ORG for ORG .", "On DATE the case was referred to ORG , as ORG could not provide comprehensive answers to the investigator ’s questions and the applicant had expressed a lack of confidence in the specialists of ORG .", "On DATE , at the applicant ’s request , the case was transferred to ORG , as the waiting time for an expert examination in ORG exceeded DATE .", "On DATE ORG issued its opinion , in which it concluded that the applicant had only sustained some of the injuries indicated in the previous report and that those injuries should be classified as minor bodily injuries , which could have been inflicted under the circumstances described by the applicant or by himself . As to the other injuries , the experts questioned them as having been diagnosed on the basis of subjective factors not confirmed by objective information .", "On DATE the investigator terminated the criminal proceedings for lack of proof of a crime . The decision mentioned for the first time the testimonies of the applicant ’s wife and son , who had confirmed his version of events . The investigator further mentioned that , in the light of the forensic expert opinion of DATE , the applicant ’s injuries should be classified as minor and therefore the criminal proceedings concerning infliction of injuries of medium severity on the applicant should be terminated .", "The applicant challenged that decision before the prosecutor and the court .", "On DATE the Kharkiv ORG quashed the decision of CARDINAL DATE on the ground that it had been premature and the investigator had not taken all the actions necessary for a gave a number of instructions to the police investigator .", "On DATE ORG decided to change the jurisdiction in the case and transfer it for further investigation from the police to the prosecution service . The case was accordingly handed over to ORG . The proceedings are pending .", "By letter of DATE , PERSON informed the applicant that the examination of his appeal against the investigator ’s decision of CARDINAL DATE was scheduled for DATE .", "The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § CARDINAL - CARDINAL and CARDINAL , DATE ) ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the S. Welfare Centre ( NORP za socijalni rad S. , “ FAC ) instituted proceedings before ORG ( PERSON ) with a view to divesting the applicant of her capacity to act ( to perform acts with legal effect ; poslovna sposobnost ) . On DATE the ORG temporarily appointed the applicant ’s mother as her guardian so that she could represent her daughter in the above proceedings . The ORG based its request on the notice from ORG of DATE in which it was stated that the applicant was suffering from schizophrenia . The relevant part of the notice read as follows :", "“ [ The applicant ] has been recurrently treated at ORG , on the last occasion from DATE , and diagnosed [ as suffering from ] schizophrenia ( depressive disorder ) , after a suicide attempt .", "During the last few treatments [ at the hospital ] the patient had left the hospital of her own will . While being in a phase of exacerbation she returned [ to the hospital ] on several occasions , after swallowing a large quantity of pills . We are aware that the patient has had problems with her mother and also that she is occasionally inclined to take drugs . As regards the main disease ( sch[izophrenia ] ) , we have not observed productive psychotic symptoms for DATE , but her behaviour and functioning has lately been compromised with so called deficiency symptoms which impede a more structured therapeutic process to a significant degree . We consider that the above indicates the need to deprive the patient of her capacity to act ... ”", "On DATE the applicant was heard by ORG judge for the first time . The transcript of her statement reads as follows :", "“ The [ applicant ] says that her problems started when she went to GPE where she felt lost and begun to consume pot [ meaning marijuana ] . Since then she ’s been suffering from hallucinations which at that time seemed tolerable to her . After DATE , in DATE , she returned to GPE where she started her treatment . She is presently receiving therapy . Her latest hospitalisation was in DATE . She is presently receiving ORG and GPE . She sells environmentally - friendly carrier bags . She neither wishes to be placed under guardianship nor does she wish to have her mother as her guardian , for private reasons . She is presently DATE pregnant and ever since she learned of this she has not taken any drugs . Most lately she has been taking pot but no heavy drugs . She is planning to terminate the pregnancy . She does not feel good on GPE , she feels depressed and in particular it bothers her at work . She has finished elementary school but has never been employed . She went to GPE when she was DATE with a group of people . She now lives in a flat owned by her mother . She lives alone since her mother lives with her new husband . However , her mother is paying the bills and the rest she earns herself . It is true that she attempted suicide by [ swallowing ] pills , most recently in DATE . She is aware that she has been diagnosed with paranoid schizophrenia . ”", "In view of the opinion given by the medical expert and the fact that the applicant was undergoing psychiatric treatment , the court stayed the proceedings .", "On DATE the applicant gave birth to a daughter , A.", "NORP In his letter to ORG , a psychiatrist of ORG stated as follows :", "“ ... we consider it necessary that the proceedings for divesting the patient of her capacity to act be resumed because her behavioural disorder has become exacerbated lately owing to her uncontrolled intake of psychoactive substances by which she has endangered her own safety and in particular the safety of her child . ”", "On an unspecified date in DATE the court resumed the proceedings and on DATE paid a visit to the applicant ’s home , in the presence of the applicant and her mother as her guardian , a judge conducting the proceedings and her secretary , a representative of the ORG and a psychiatrist . The relevant parts of the report of the visit read as follows :", "“ The [ applicant ] in the company of her mother and child is met at the LOC . The representative of the LOC states that a decision to place the child in foster care was issued and that the [ applicant ] ’s mother was appointed as carer . The [ applicant ] states that she agrees to that as well as to being placed under guardianship in the best interests of her child since she is aware that she is unable to care for the child or for herself . However , she asks whether she can apply to have her capacity to act restored if her condition improves . In the meantime she has twice been admitted to hospital but does not see any results and does not know what to do with herself . From time to time she says that she might go back to GPE to earn some money . It is true that she has been taking drugs , though rarely and only pot and also larger quantities of GPE together with the prescribed therapy . In fact , she is not working , she is mostly at home caring for the child . Only after being asked by her mother and the representative of the ORG does she admit that she is still receiving company at home and that she gave some kitchen cupboards to ORG because she did not like them ( the mother says that she sold them ) . The father of the child , living in the same building , occasionally visits her and the child , but she has no committed relationship although DATE she terminated another pregnancy . Although she expresses a wish to do any job , she admits that so far she has taken no steps to that end . ”", "The court also ordered a psychiatric assessment of the applicant ’s mental condition . The assessment was carried out by the psychiatrist present at the visit to the applicant ’s home . The conclusion of the report drawn up on DATE read as follows :", "“ ... The patient suffers from a chronic mental illness with progressive tendency .", "Addiction to opiates has also been fixed and motivation for abstention is weak . Prognosis quoad sanationem is exceptionally unfavourable .", "The patient is unable to protect herself or her rights and interest and might endanger the rights and interests of others .", "I propose that she be entirely divested of the capacity to act . ”", "On DATE ORG divested the applicant of the capacity to act . The operative part of this decision reads as follows :", "“ X ... is entirely divested of her capacity to act . ”", "In its reasoning ORG summarised the findings of the applicant ’s psychiatric assessment and concluded as follows :", "“ ... this court has established without doubt that the [ applicant ] , owing to her mental illness and addiction to opiates , is not able to care for her personal needs , rights and interest , and therefore also endangers the rights and interests of others . Accordingly , she has to be entirely divested of her capacity to act under section CARDINAL of LAW . ”", "The applicant did not appeal against that decision , and it became final on DATE . An ex lege consequence was that the applicant was also deprived of her parental rights although the decision to divest the applicant of her capacity to act did not state it expressly . The court appointed her mother as her guardian . Following a request made by the applicant ’s mother , on DATE the applicant was placed under the guardianship of GPE , an employee at the LOC .", "On DATE the applicant applied to ORG in order to have her capacity to act restored . On DATE the court asked ORG to make an assessment of the applicant ’s mental condition . The relevant parts of the report drawn up by a different psychiatrist on DATE read as follows :", "“ ... Psychiatric expertise in this case commenced in DATE when the patient answered the ORG ’s invitation . However , during the first interview she showed transparent psychosis with delusional elements and disjointed breathless speech , and when an attempt was made to carry out a urine test for psychoactive substances the patient did not appear at the interview scheduled for DATE . ...", "The second interview was held on DATE at the time of her hospitalisation in ORG , unrelated to these proceedings , and being the result of the evident exacerbation and bad condition of the main illness . The patient was hospitalised on DATE . During the present interview , despite the therapy administered , just the same as during the interview held in DATE , she manifests florid psychosis with all elements of schizophrenic psychosis . Paranoid manic ideas , relational delusions as well as delusions of persecution and bizarre manic ideas are dominant . Her interpretation of reality , of herself and others is completely distorted . [ The patient ] represents a typical phenomenon of derealisation and depersonalisation . Her emotions are engaged only with regard to her manic perception ; otherwise she is emotionally cold and aloof . Emotional resonance is lacking during the interview . Her overall behaviour has a manic quality . There is no doubt that her everyday functioning is also determined by the above - described psychopathological perception . ...", "In my opinion the problems associated with the intake of addictive substances , those being cannabis , are at the time being of secondary importance . She took other psychoactive substances only experimentally and occasionally and her psychotic picture , clinically manifested for a long time , can not be associated with it . However , it is clear that her previous intake of cannabis had a role in forming her behaviour , possibly even in inducing her psychotic behaviour and her overall clinical picture .", "In comparison to the previous psychiatric assessments , her psychopathology , that is to say her clinical picture of schizophrenic psychosis became more pronounced , delusions are now barely susceptible to any corrections , dislocation of the thought process is noticeable , emotional coldness and aloofness , loss of the reality test , utmost lack of critical insight towards herself . Owing to her psychopathological drives she is aggressive , hostile and paranoid towards others .", "In these circumstances I consider that the conditions for restoring the capacity to act to X do not exist . On the contrary , the psychopathological reasons which led to her being divested of the capacity to act are now even more conspicuous and more numerous . Owing to her mental disturbances ( schizophrenia ) the patient is still not able to look after her personal needs , rights and interests and moreover she is endangering the rights and interests of others . Therefore , I propose that the court maintain [ its decision ] that she be entirely divested of the capacity to act and placed under guardianship .", "... ”", "At the hearing on DATE , the applicant objected to the above assessment and requested a new one . The second psychiatric assessment carried out by ORG of ORG supported the first one . The relevant parts of the report drawn up by a psychiatrist , PERSON , on DATE read as follows :", "“ ...", "Mental status : conscious , uncertain about time , well oriented in space , auto and allopsychic orientation preserved . Contact is easily established , she answers questions without latency . Psychomotorically tense , worried about the outcome of the proceedings . Affected behaviour . Basic disposition slightly uneasy . Emotionally distant . Thought flow regular in its form , in content [ includes ] description of previous manic experiences and sensory delusions , currently without florid psychopathological deviations . [ She ] denies delusions and none are perceived . Her intellectual and mnestic capacities are devoid of strong deviations . Her will - instinct dynamism is preserved . She is neither aggressive nor suicidal .", "Opinion", "The patient ... has been suffering for DATE from chronic mental illness , schizophrenic psychosis . In addition , as is commonly found with such an illness , she is also an addict , she has been consuming various opiates and even DATE her abstinence can not be established with certainty . She has been hospitalised on CARDINAL occasions . The [ medical ] documentation and the information obtained from the patient both show that there was no single period of systematic clinical monitoring after her release from hospital or a sustained period of social functioning . Therefore , we can fully agree with the above assessment of our colleagues who gave their opinion of the patient ’s mental health and agree that it is good for her not to have her capacity to act restored .", "There has been no improvement of her clinical picture or her social functioning in relation to the opinion expressed at the latest assessment , which is understandable given the nature of her disorder , i.e. chronic mental illness .", "Conclusion", "[ The applicant ] is suffering form schizophrenic psychosis of paranoid disposition and in addition is still consuming opiates , which altogether indicates that the disorder , which is in any case chronic , has also been progressing and renders X incapable of taking care of her interests , rights and responsibilities , so that there is no ground for restoring her capacity to act , of which she has been divested since DATE . ”", "On DATE the court , relying on the above psychiatric assessment , refused the applicant ’s request to restore her capacity to act . The applicant did not appeal against that decision .", "In a decision of CARDINAL DATE the ORG placed the applicant ’s child in foster care , relying on section CARDINAL(CARDINAL ) of the DATE LAW , and also appointed the applicant ’s mother as a carer . The relevant operative parts of the decision read as follows :", "“ CARDINAL . A. ( personal data of the child ) has the right to foster care outside her own family – placement in the foster family of [ maternal grandmother ] ... , beginning from DATE .", "...", "...", "Contacts between the child A. with her mother X shall be arranged in consultation with the foster carer and with her father NORP every DATE and DATE from TIME and every DATE from CARDINAL . p.m. to CARDINAL . p.m.", "... ”", "The relevant part of the reasoning reads as follows :", "“ ... The following has been established in these proceedings :", "The child A. is registered with this ORG as having parents of asocial behaviour . She was born out of wedlock . Her mother X , born on DATE is chronically ill , under treatment for mental problems and addiction . In DATE proceedings with a view to divesting her of the capacity to act were instituted and her mother , [ the child ’s maternal grandmother ] , was appointed her temporary guardian . The proceedings are still pending .", "The father ( his personal data ) is a minor who has left school and is unemployed and a drug addict ...", "The quality of the GPE relationship has significantly deteriorated lately , including frequent verbal and physical conflicts requiring police intervention . The parents have neglected the child .", "On DATE the expert panel of this ORG decided to allow placement of the child A. in the foster family of ... , maternal grandmother , who has helped [ the parents ] both by providing care for the child and financially .", "Contacts [ between the child and her parents ] are [ to be ] arranged according to the agreement between the parents and the foster carer . ”", "In a decision of CARDINAL DATE the ORG deprived the applicant of the right to live with her daughter , ordering that she be placed in ORG , in the care of CARDINAL of their employees , ORG The contacts between the child and her parents were to be arranged with the custodian and according to ORG the above institution . The relevant part of the decision reads as follows :", "“ The proceedings have been instituted by ORG its own motion .", "The interviews with the child ’s mother , X , and maternal grandmother , ... , as well as an on - the - spot inspection and the relevant documents show the following facts :", "The S. Welfare Centre ’s decision ... of DATE ordered placement of the child A. under the foster care of her maternal grandmother ... since the child ’s parents had been assessed as persons who , owing to their asocial behaviour and consumption of opiates , were not capable of caring for the child . In respect of the child ’s mother , X , proceedings with a view to divesting her of the capacity to act were instituted owing to her mental problems and problems with addiction . She was divested of her capacity to act in a final judgment ( no . ... ) of DATE on the ground that , owing to her disturbed mental state ( schizophrenia ) and addiction to opiates , she had been incapable of caring for her personal needs , rights and interests and was endangering the rights and interests of others ...", "Supervision of the child ’s family circumstances , however , revealed that the child , although placed in her grandmother ’s foster care , had continued to live in the same household with her mother , who had interfered with her upbringing and taken part in caring for the child , which the foster carer could not prevent ...", "The child ’s mother had not allowed the foster carer to care for the child . She was often under the influence of opiates which made her behave in an aggressive and unpredictable manner .", "The child ’s mother X admitted to consumption of opiates but considered that the child had not been at risk since , when feeling that she could not care for the child , she had been in the habit of taking the child to her paternal great - grandmother who then cared for the child since she , the mother , did not trust her own mother . She was aware of the overall situation and that the child ’s surroundings were not beneficial for her but she blamed her mother and was looking for a solution ( statement given on DATE ) .", "The child ’s father is currently doing his military service and is therefore not in a position to care for the child .", "Bearing in mind the overall family circumstances , the expert panel for family protection considered that the current living conditions endangered the child and that her placement under the foster care of ORG was urgent ( the expert panel ’s conclusion of DATE ) .", "The decision on [ the child ’s ] contacts with [ her ] parents has been adopted in view of the mother ’s opposition to the taking of the child and her placement in an institution as well as the child ’s need for regular contacts with her parents , which contacts , having regard to the GPE state of health , shall take place under expert supervision . ”", "According to the applicant , she continued to visit her daughter on a regular basis . According to the Government , the applicant visited her daughter once in DATE .", "On DATE the ORG placed the applicant ’s child , A. , under the guardianship of PERSON The relevant part of this decision reads as follows :", "“ These proceedings have been instituted by ORG its own motion .", "The following has been established in the proceedings :", "- that A is a child without parental care since her father NORP died on DATE and her mother PERSON was entirely divested of her capacity to act in ORG decision ... of DATE ;", "- that a social worker , PERSON , an employee of this Centre is currently a guardian of X ... ;", "- that the child A. has been placed in Institution L. ;", "- that [ the ORG ’s employees ] paid a visit to L ;", "-that a social worker , PERSON , an employee of L , was heard and agreed to be appointed as a guardian of A. ;", "- that the prescribed conditions for her guardianship have been fulfilled . ”", "The above decision was not served on the applicant . In DATE the ORG instituted proceedings for the adoption of A. of its own motion , without the applicant ’s knowledge . On DATE M.B. , as A. ’s guardian , gave her consent to the adoption . The Government submitted that on DATE the applicant ’s mother and the child ’s paternal grandmother had been informed about the ongoing adoption proceedings . They also submitted that the applicant had been informed thereof during a telephone conversation on DATE .", "On DATE the ORG issued a decision authorising the adoption of A. That decision became final on DATE .", "NORP Under the domestic legislation in force , the applicant , being a person divested of the capacity to act , was not a party to the adoption proceedings , nor was she informed that they had taken place . Only later did the applicant find out that her daughter had been given up for adoption .", "LAW ( Obiteljski zakon , Official Gazette no . DATE ) , in so far as relevant , read as follows :", "“ ( CARDINAL ) Parental rights encompass protection of a child ’s personal and economic interests and parental responsibility for his or her wellbeing .", "( CARDINAL ) Parental rights may be restricted or divested only by a decision of a competent body for the reasons and in the procedure prescribed under LAW . ”", "“ ( CARDINAL ) Where parents do not live together a ORG shall designate the parent with whom the child shall live and arrange contacts between the child and the other parent except where this LAW has placed such decisions within the jurisdiction of the courts .", "...", "( CARDINAL ) In the case mentioned in paragraph ( CARDINAL ) , where both parents are incapable of caring for their child or are otherwise unable to do so or are putting the child ’s wellbeing at risk by their acts a ORG shall place the child [ under the care of ] another person or an institution .", "( CARDINAL ) Where a ORG makes a decision under paragraph ( CARDINAL ) it shall establish the duties and rights of each parent in respect of their care for the child . ”", "“ ( CARDINAL ) Where parents incapable of caring for their child , owing to their absence or health or other grounds , have not placed the child under the care of a person fulfilling the conditions for a guardian , a ORG is empowered to place the child under the care of another person or an institution without the GPE consent .", "( CARDINAL ) Placement or care of the child under paragraph ( CARDINAL ) shall not exceed DATE in duration . ”", "“ ( CARDINAL ) A ORG shall deprive of the right to live with his or her child a parent who seriously neglects or puts at risk the upbringing and education of the child and shall place the child under the care of another person or an institution .", "...", "( CARDINAL ) Deprivation of rights under paragraph ( CARDINAL ) ... does not terminate other duties and rights of a parent in respect of his or her child . ”", "“ ( CARDINAL ) Measures under [ section CARDINAL ] ... shall not exceed DATE in duration .", "... ”", "“ ( CARDINAL ) A parent who abuses or gravely neglects parental duties and rights shall be divested of these rights by a decision of a court adopted in non - contentious proceedings .", "... ”", "“ ( CARDINAL ) An adult who , owing to mental damage or illness , addiction to opiates , senility ( dementia ) or on other grounds , is incapable of taking care of his or her personal needs , rights and interests or is endangering the rights and interests of others shall be partly or entirely divested of the capacity to act .", "... ”", "LAW ( Obiteljski zakon , Official Gazette no . CARDINAL of DATE ) , in so far as relevant , reads as follows :", "“ ( CARDINAL ) Once adoption has been established parental custody [ of the adopted child ] shall cease .", "... ”", "“ ( CARDINAL ) Adoption may be established if it is in the interest of the child .", "... ”", "“ ( CARDINAL ) Adoption shall require the consent of both parents , except where otherwise provided .", "... ”", "“ Adoption shall not require consent of a parent who is ...", "Divested of the capacity to act ... ”", "“ ( CARDINAL ) Adoption proceedings shall be carried out of its own motion by the competent welfare centre ... ”", "...", "“ ( CARDINAL ) A parent whose consent for adoption is not required shall not be a party to the adoption proceedings . ”", "“ If necessary , the competent welfare centre shall hear the child ’s other relatives about the circumstances relevant to the adoption decision . ”", "“ ( CARDINAL ) Once adoption has taken place , all rights and obligations between the child and his blood relatives shall cease .", "... ”", "The UN Convention on the Rights of the Child of DATE , which entered into force in respect of GPE on CARDINAL DATE ( ORG ) , in so far as relevant reads as follows :", "LAW of DATE , in so far as relevant , reads as follows :", "“ ... an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn :", "a. the consent of the mother and , where the child is legitimate , the father ; or if there is neither father nor mother to consent , the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect ;", "b. the consent of the spouse of the adopter .", "The competent authority shall not :", "a. dispense with the consent of any person mentioned in paragraph CARDINAL of this article , or", "b. overrule the refusal to consent of any person or body mentioned in the said paragraph CARDINAL ,", "save on exceptional grounds determined by law .", "If the father or mother is deprived of his or her parental rights in respect of the child , or at least of the right to consent to an adoption , the law may provide that it shall not be necessary to obtain his or her consent . ”", "On DATE ORG adopted “ Principles concerning the legal protection of incapable adults ” , Recommendation No . R ( CARDINAL ) CARDINAL . The relevant provisions of these Principles read as follows :", "“ Principle CARDINAL — Flexibility in legal response", "The measures of protection and other legal arrangements available for the protection of the personal and economic interests of incapable adults should be sufficient , in scope or flexibility , to enable suitable legal response to be made to different degrees of incapacity and various situations . [ ... ]", "The range of measures of protection should include , in appropriate cases , those which do not restrict the legal capacity of the person concerned .", "Principle CARDINAL — Maximum reservation of capacity", "NORP The legislative framework should , so far as possible , recognise that different degrees of incapacity may exist and that incapacity may vary from time to time . Accordingly , a measure of protection should not result automatically in a complete removal of legal capacity . However , a restriction of legal capacity should be possible where it is shown to be necessary for the protection of the person concerned .", "NORP In particular , a measure of protection should not automatically deprive the person concerned of the right to vote , or to make a will , or to consent or refuse consent to any intervention in the health field , or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so . [ ... ]", "Principle CARDINAL — Proportionality", "Where a measure of protection is necessary it should be proportional to the degree of capacity of the person concerned and tailored to the individual circumstances and needs of the person concerned .", "NORP The measure of protection should interfere with the legal capacity , rights and freedoms of the person concerned to the minimum extent which is consistent with achieving the purpose of the intervention . [ ... ]", "Principle CARDINAL — Right to be heard in person", "The person concerned should have the right to be heard in person in any proceedings which could affect his or her legal capacity .", "Principle CARDINAL — Duration review and appeal", "Measures of protection should , whenever possible and appropriate , be of limited duration . Consideration should be given to the institution of periodical reviews . [ ... ]", "There should be adequate rights of appeal . ”" ]

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[ "On DATE at TIME CARDINAL plain - clothed policemen went to the applicant PERSON office in Cizre . After being searched , the applicant was taken to the gendarmerie . At TIME QUANTITY policemen , including the CARDINAL who had detained the applicant , returned with him to search his office . They seized all the applicant 's note - books , powers of attorney , case files ( particularly concerning applications to the Commission - no . CARDINAL/CARDINAL NORP and CARDINAL others v. GPE , no . CARDINAL/CARDINAL GPE v. GPE and no . PERSON v. GPE ) . His collection of newspapers ( the pro - NORP PERSON , PERSON and PERSON ) , magazines and books were also seized . The applicant signed a procès - verbal concerning his provisional detention . At TIME the policemen took the applicant to his home , where they made a search but did not seize anything . He was kept at the police station until being handed over to the Cizre gendarmerie command DATE .", "He alleged that he was ill - treated by the NORP police . He was stripped naked , insulted , threatened and beaten up . His testicles were squeezed and cold water was poured on him . This lasted TIME . Then they took the applicant to the Cizre district gendarmerie command where he was kept , blindfolded , for DATE in a basement . Thereafter he was handed over to the ORG provincial gendarmerie command .", "NORP Throughout this time the applicants had to leave their children with neighbours .", "On DATE he was brought to court after a cursory medical examination by a doctor who , apparently being frightened of the gendarmes , did not mention the evidence of torture in his report . After his release , the applicant received treatment for kidney and stomach problems . ( For further details see the summary of his oral evidence , § § CARDINAL - CARDINAL below . )", "The applicant alleged that during his detention he was severely beaten , threatened with execution , insulted , deprived of sleep and food and blindfolded much of the time . He stated that PERSON , PERSON and PERSON had been tortured with cold water .", "During his detention he was taken to the toilet twice a day , at TIME . It was impossible to use the toilet or get drinking water at other times . He received a slice of stale bread TIME .", "On DATE the applicant was taken into custody when he was leaving ORG . He was transported to the ORG provincial gendarmerie command . In general he was made aware by his interrogators that the ORG confessor , PERSON , had alleged that he was in league with ORG prisoners , had acted as a courier for them , and had smuggled unlawful materials into prisons , e.g. a flick knife . The applicant denied the allegations .", "The applicant 's brother had been detained in the same prison as Mr Güven . PERSON also attended all interviews with clients . The applicant was confronted , whilst blindfolded , with PERSON . He signed certain statements , the contents of which he did not know , because of the psychological pressure brought to bear on him . He was released on DATE . ( For further details see the summary of his oral evidence , § § CARDINAL - CARDINAL below . )", "On DATE the applicant was taken into custody by gendarmes after leaving ORG around TIME , together with Meral PERSON , PERSON and PERSON . He was transported to the ORG provincial gendarmerie command . When he was interrogated , he was questioned about the cases he had defended before ORG . He was accused of assisting ORG detainees by acting as a courier and not charging fees for his work . He was told that the ORG confessor , PERSON , had made certain allegations about him and other local lawyers . The applicant denied these allegations . He signed various statements , the contents of which he did not know , under physical and psychological duress . He was released on DATE . ( For further details see the summary of his oral evidence , § § CARDINAL - CARDINAL below . )", "On DATE the applicant was arrested at another lawyer 's office . After the official search report noted that nothing incriminating had been found , he was taken into custody by gendarmes . He was transported to the ORG provincial gendarmerie command . He was accused of being a member of and assisting the ORG , and of constantly defending ORG cases . He denied the allegations . The applicant signed certain documents under duress in order to avoid being tortured . He did not know their contents at that point as he had been blindfolded . He was released on DATE . ( For further details see the summary of his oral evidence , § § CARDINAL - CARDINAL below . )", "At no point were the applicants ill - treated . They were dealt with in accordance with the law and their conditions of detention were acceptable .", "DATE . Other evidence against the applicants consisted of their statements at the gendarmerie command , which they subsequently repudiated as having been made under duress . ORG reserved the issue of the admissibility of those statements . The remaining evidence comprised incriminating documents such as ORG notes , receipts and newsletters , which the applicants alleged had been fabricated .", "On DATE ORG suspended the proceedings for DATE , to be taken up again should any of the applicants commit an offence of the same or more serious kind during that time ; otherwise they would be definitively closed ( see Law No . DATE on conditional release , the suspension of proceedings or the execution of sentences in respect of crimes committed before DATE , paragraph CARDINAL below ) .", "Three Delegates of ORG took evidence in GPE DATE . The applicants , with the exception of ORG , appeared before the Delegates , as did several Government witnesses . The applicants ' representatives stated that ORG maintained her application even though she did not testify for fear of having to re - live the events and because she was pregnant at the time . The oral evidence may be summarised as follows :", "PERSON", "Mr Elçi was born in DATE . At the material time he was a practising lawyer in Cizre , but was now working in GPE .", "In DATE there had been some CARDINAL practising lawyers in Cizre . He himself was registered at FAC and handled different types of criminal cases . However , many people were taken into custody at that time and the applicant found himself more and more defending people before ORG .", "On DATE he was in his NORP office at TIME preparing a case with a client . Suddenly CARDINAL armed officials entered his office and demanded that he accompany them to the NORP police station . CARDINAL other officials waited outside . He was taken to the NORP police headquarters , and his car was removed .", "After waiting there for some time , Mr Elçi was taken back to his office by several other officials ( requiring CARDINAL or CARDINAL vehicles ) . His office was searched . All his belongings were put in sacks , including many case files , notebooks , books ( except legal text books ) , newspapers , magazines , an address book and other documents . Amongst the case files were several involving applicants to ORG : PERSON and others v. GPE ( No . CARDINAL/CARDINAL ) , PERSON and others v. GPE ( No . CARDINAL ) and ORG v. GPE ( No . CARDINAL/CARDINAL ) . A further application by PERSON and CARDINAL others was in the course of preparation . These Commission files were never returned to the applicant in their entirety , unlike the domestic files .", "In answer to questions from ORG , PERSON claimed that a document purporting to have been found in his office headed “ Comrade PERSON with an “ ERNK ” stamp on it , was a complete fabrication and was not to be found in the document delivery report .", "The officials had drawn up a short , hand - written report , concluding that nothing incriminating had been found . His brother , PERSON , being present , had signed the report .", "The applicant was then taken to his house where another search was conducted , but nothing incriminating was found . He was returned to the NORP police headquarters where his personal belongings ( belt , money and wallet ) were removed . He was blindfolded and put in a dark cell in the basement .", "Later he was taken out of the cell by a large group of officials and kicked , beaten , threatened with his life and insulted . He was made to remove his clothes , cold water was poured over him and his testicles were squeezed . He was asked why he took cases concerning villagers who had been evacuated from their homes , and why he denounced GPE abroad . He did not think this was an interrogation , rather the officials were venting their anger on him . This ill - treatment lasted TIME before he was returned to his cell .", "One of the Cizre policemen involved in this was a certain PERSON or GPE , who had already accosted the applicant in the street to check his identity . As a member of ORG , assisting destitute villagers at a time of great tension in LANGUAGE , involving clashes between the ORG and ORG forces , threats had been made to him previously by the NORP police .", "During TIME he was transferred to the NORP district gendarmerie command , where he was kept blindfolded in a corridor in the basement . He was not ill - treated there . Either DATE after , he was taken to the ORG provincial gendarmerie command where he was made to lie , double - blindfolded , on a cement floor . There were other detainees , including the applicant PERSON , but nobody really talked to each other except in short whispers .", "On DATE Mr Elçi was taken for interrogation . He was asked about his dealings with the ORG ; when he said he had none , he was punched very hard .", "DATE he was interrogated again . He was confronted with PERSON , a prisoner and ORG confessor , whom Mr PERSON had known as a neighbour and fellow student . Mr Güven recounted that Mr Elçi had acted as a courier for him , taking notes to ORG aids in Cizre . Mr Elçi vehemently denied the allegations , whereupon he was beaten .", "The Delegates of the Commission asked Mr Elçi about a statement made by PERSON that he had met a ORG connection called GPE at Mr PERSON 's house . Mr PERSON denied this , suggesting that Mr Güven might have slandered him out of jealousy because of his success as a lawyer , whereas PERSON was a common criminal and murderer .", "Mr Elçi claimed that CARDINAL documents purporting to be records of interviews with him and a confrontation with Mr Güven were complete fabrications , as shown by the fact that he had not signed them .", "DATE he was taken in a vehicle to a field where his execution was simulated - officials fired a gun about CARDINAL times and ordered him to talk . Mr Elçi shouted insults in reply . On the way back to the detention centre , he was again ordered to get out of the vehicle on a gravel road and a couple of shots were fired . He had been extremely frightened .", "DATE he was presented to ORG to whom he recounted his background . However , to avoid any fabrication of his statement , he refused to sign anything , whereupon he was insulted and returned to his place of detention .", "Perhaps DATE , Mr Elçi was to be presented to a court . He was taken into a room where his blindfold was removed and placed at a simple table where a bright light was shone in his face . He refused to sign a statement that was put in front of him , despite efforts to trick him into doing so . He was then taken to a back room , stripped naked and hosed down with cold , pressurised water , to the front of his body and genitals . His testicles were squeezed CARDINAL or CARDINAL times and he was freezing , aggravated by the fact that it was DATE .", "There were other people detained with him , including the applicant PERSON , who at CARDINAL point covered Mr Elçi with his jacket to protect him from the cold . He heard the applicant PERSON moaning and crying . PERSON also called out to him . Mr Elçi was returned to the previous detention room where co - detainees said they had signed documents out of fear .", "He was subjected to cold water hosing whilst naked on DATE , together with PERSON , who was screaming . It seemed to TIME . Loud nationalistic music was played at the same time . They were ordered to sign or die . However , neither of them signed any document . Mr GPE believed at that stage that he was indeed about to die .", "Mr Elçi had only met PERSON when they had been detained together . The latter had been brought from GPE . Mr PERSON was not in custody at the same time as PERSON and PERSON , who were also brought from GPE .", "During his detention , Mr Elçi received generally CARDINAL piece of bread a day and was taken to the toilet twice a day . Despite the bitter DATE cold , he was given no blanket . He sat on concrete in his own clothes . Some of the other detainees had a thin smelly blanket .", "Mr Elçi had not been seen by a doctor when he was first detained . He was presented to a doctor on DATE , when he was taken to ORG . Apart from asking him whether he had any ailments , this doctor did not examine him , and Mr Elçi did not mention the ill - treatment , in order not to prolong his detention any longer . Anyway , he had no corroborating injuries on his body as far as he knew then .", "Mr PERSON told ORG and ORG about the ill - treatment to which he had been subjected , but his impression was that he was not taken seriously . In the statement to the Prosecutor he was recorded as having complained of having been left naked with cold water being poured on him , of torture by electricity and of having had his testicles squeezed . However the electricity claim was incorrect . He had signed his statement to ORG without reading it over , as nothing detrimental had been said about him . From DATE to CARDINAL DATE , Mr Elçi was detained on remand without further ill - treatment . On DATE , he was discharged after recounting to the court his allegations of ill - treatment , and nothing had happened since , although the prosecution against him was still pending . At first he was accused of being a member of an illegal organisation , modified later to assisting members of that organisation .", "NORP Some time in DATE , Mr Elçi was summoned by the police headquarters in GPE to give a statement about the treatment to which he had been subjected in Cizre . DATE , he was required by the prosecution office to undergo a medical examination which , naturally , disclosed nothing so long after the events . However , he repeated his earlier allegations . In DATE he was informed that ORG had decided not to pursue criminal proceedings against any of the Cizre officials allegedly involved in the matter . Mr Elçi objected to that decision but did not know what the outcome of that had been .", "PERSON", "Mr PERSON was born in DATE and was a practising lawyer in GPE at the material time .", "On DATE , whilst the applicant was waiting to plead a case in ORG , he was taken into custody by policemen from the GPE Anti - Terror Department . From there , the applicant was taken to his home , where his wife was waiting , and a search was made . Both were taken back to ORG before their children came home from school , so a neighbour agreed to look after them .", "The officials were unable to explain why the couple had been detained , other than saying that they were acting on the instructions of the ORG gendarmerie . PERSON and PERSON were kept together in the same cell until TIME CARDINAL officers from GPE arrived and Mr PERSON was taken to a ORG office where he paid for everyone 's tickets to ORG , for which destination they left at TIME on DATE .", "At GPE airport they were handed over to other officers and taken in a minibus , with their heads covered , to what he later learnt was the ORG provincial gendarmerie command .", "Mr PERSON was not told about the charges against him . During interrogation he was accused of being involved in the closure of FAC , of being a ORG courier between various prisons , in some of which he had never set foot , and of denigrating GPE . He acknowledged involvement in the campaign to close FAC .", "He was asked questions about PERSON , whom he had never met directly . It was alleged that Mr Güven had used him as a courier . He and his wife were accused of defending left - wing and ORG cases .", "It was DATE , when he was presented to ORG , that he was informed that Mr Güven had made formal allegations against him . He was not confronted with PERSON during his detention as far as he was aware , having been blindfolded throughout .", "Mr PERSON had not made any applications outside GPE on behalf of any of his clients . He had contacted ORG and similar institutions about the allegedly inhuman conditions in the cell system at Eskişehir prison . He had not filed any applications for clients to ORG .", "He had signed a confrontation record and statement which he subsequently disavowed , as the signature had been made under pressure after being tortured .", "He was taken before an Investigating Judge who apologised for having to arrest him and his wife despite the CARDINAL children , but he had been ordered to do so by his “ chief ” .", "Mr PERSON was released on DATE , together with his wife . It took him DATE to recover from the experience and before he could resume his legal practice in GPE . In the meantime he performed his military service . He had no clients left when he started work again .", "PERSON", "PERSON was born in DATE and was a practising lawyer in GPE at the material time .", "On DATE she had been at home when her husband telephoned around TIME to say that he had been taken into custody and that she should wait for him to be brought home by the police .", "CARDINAL police officers and her husband arrived between TIME and she was told that she was also to be taken into custody . A search of TIME was made of the house and a report drawn up which they did not sign there . Nothing was seized . She asked a neighbour to look after their CARDINAL children , as she was expecting to be away for DATE . PERSON and PERSON were taken to the First Branch of ORG , without being told of the reasons for their detention , other than a reference to unspecified instructions from ORG .", "Around TIME on DATE she and her husband were handed over to CARDINAL plain - clothed officials from ORG , to where they flew at TIME They were taken , head - covered , to a place called the ORG at the ORG provincial gendarmerie command , according to the officials there . She claimed that the ORG had no legal status .", "In ORG they were not informed of what they were accused . The questions put to them were unrelated to any possible criminal offence . She was asked about her work for newspaper publishers whose editions included “ PERSON ” , a purportedly separatist newspaper . She was asked why she had married a NORP and why she defended dissidents . She was told that she was a traitor and a separatist . No mention was made of NORP complaints .", "It was only before ORG of ORG , to whom she was presented on CARDINAL or DATE , that she heard that ORG had made specific allegations against her . She had not been confronted with him , as far as she was aware , being blindfolded throughout . The ORG said that PERSON accused her of acting as a ORG courier , serving as a ORG lawyer for the newspaper , being financed by them and the like . It was true that she had signed a confrontation document concerning PERSON , but this was at the end of the alleged torture period when she was disoriented , intimidated and tricked into signing a document , the contents of which she had been unable to verify due to the blindfold .", "The indictment dated DATE concerning her and other detainees was not shown to her until DATE after its issue , by her lawyers , when she was on remand at the ORG central maximum security prison .", "The indictment mentioned that PERSON had drawn up documents which had been faxed to human rights associations in NORP countries . PERSON acknowledged having prepared documents which colleagues in LOC would have submitted to ORG . She also actively campaigned in GPE against unlawful events and had spoken to foreign human rights delegations who had visited GPE .", "Prior to her arrest , she had visited a prison in ORG where she researched an article for “ PERSON ” , and had acted as the newspaper 's representative in a civil defamation claim . During that visit , ORG had been in the room . She had not taken up the defence of any ORG prisoners .", "ORG", "Mr Kaya was born in DATE and at the material time was a practising lawyer in ORG .", "On DATE at CARDINAL CARDINAL p.m. , CARDINAL plain - clothed policemen went to the applicant 's office which they searched even though they did not have the proper authorisation from ORG pursuant to ORG DATE of the Law on Advocates . They had had Mr Kaya 's agreement . A record of the search was drawn up , which he signed . Nothing was seized .", "He was then taken into custody at the ORG provincial gendarmerie command without any reasons being given . Prior to that time , he knew that other colleagues of his had been taken into custody by the ORG , but he was detained by the police , so he made no connection with the previous events . On arrival at the police station he was told that he had been detained on the ORG 's instructions . His personal belongings were removed and he was taken for a medical examination before being handed over to ORG officers at the hospital .", "During interrogation he was told that he had ORG connections , about which he was asked . It was said that he was a ORG lawyer . He was confronted with someone purporting to be ORG . The applicant did not see him because of a double blindfold . He had met PERSON Güven when interviewing clients in ORG prison , at which interviews the former had been present as a prisoners ' representative .", "Mr Güven accused him of recruiting lawyers for the ORG , which ORG denied . According to a written statement by PERSON , not put to the applicant orally during the interrogation , PERSON was accused of having acted as a courier between GPE and LOC prisons . However , Mr Kaya had never set foot in the latter establishment , and he denied the allegation .", "Mr Kaya signed statements at the end of his interrogations after having been intimidated by harassment , kicking and beatings , and the fear of being left a cripple .", "Among his co - detainees , the applicant saw that PERSON had been beaten up and was in acute pain . Meral PERSON was moaning and freezing cold , presumably after being hosed down with cold water . This treatment had been inflicted on PERSON and PERSON in the toilet area at the end of the cell corridor , from which one could hear screams , shouting and pouring water . It was very cold outside at the time .", "They were kept in a corridor and slept on the floor , CARDINAL blanket for CARDINAL people . Each day they were fed CARDINAL a loaf of left - over bread which had traces of other food on it . They were taken to the toilet twice a day and were given drinking water . Deafening nationalistic music was blaring all the time and they were blindfolded .", "Before the Public Prosecutor PERSON refuted the statement he had signed under torture .", "On his release being ordered by a court , the applicant and several other lawyers were addressed by a gendarme regiment commander , PERSON , who warned them that , just because they had been released , they had not been cleared of suspicion as far as the security forces were concerned .", "PERSON", "PERSON was born in DATE and at the material time was a practising lawyer in ORG .", "On DATE around TIME police arrived at his house and conducted a search . A report was drawn up concluding that no incriminating evidence had been found , and nothing was seized . PERSON was taken into custody at the ORG provincial gendarmerie command .", "PERSON protested at the lack of authority and jurisdiction for his detention by the gendarmerie . He was told that he was in the hands of a gendarmerie intelligence service - the ORG .", "He was detained for DATE ( DATE according to official records ) and interrogated about his professional activities and alleged involvement with the ORG , given his legal representation of cases before ORG .", "Mr Tur was confronted with ORG , a ORG confessor whom the applicant had met as a prisoners ' representative in FAC when visiting clients there . The applicant 's name and that of several lawyers had been cited in his confessions , but PERSON believed that these events would in any event have happened to him , without such denunciations , because of his human rights involvement . PERSON vehemently denied PERSON allegations .", "Contrary to official claims , he had not been confronted with his maternal aunt 's husband , PERSON . He denied having carried out NORP tasks with him , including aiding , abetting and harbouring a wounded ORG member , who , in the applicant 's view , had never existed .", "Mr Tur was kept in a cell CARDINAL x QUANTITY . When in the cell , he was able to remove his blindfold . He received CARDINAL of a loaf of bread a day and , as far as he could remember , he was taken to the toilet once TIME . Drinking water was not readily available . He was forbidden to speak to other co - detainees . Those who disobeyed were severely beaten , insulted and tortured .", "He claimed to have been severely beaten , insulted and threatened with execution . He was deprived of sleep due to very loud music being played all the time . He had been blindfolded throughout and had signed statements DATE under duress . He repudiated the contents of those statements .", "PERSON , PERSON and PERSON ( and possibly PERSON ) were also tortured , particularly with cold water hosing , which he heard being used on them in the toilet area . He recognised their voices , as he knew them well . They lost weight and their overall demeanour deteriorated as a result .", "The officers who escorted them to interrogation were not the same as those who performed the interrogation . As far as he could tell , being blindfolded , CARDINAL or CARDINAL people conducted his interrogation .", "Mr Tur was taken to a doctor at the end of the custody period but , as he showed no visible marks of torture , the doctor said he was unable to record anything . He nevertheless related his complaints of torture to the doctor , ORG and the Investigating Judge .", "Before being released , he and some of his colleagues were addressed by a ORG regiment commander who warned them that the case was not closed and they would still be followed .", "Mr Tur had been detained CARDINAL times previously in connection with the ORG activities of his brother , PERSON . His brother was killed in a clash in DATE . The applicant was convicted and sentenced to imprisonment twice for assisting and harbouring the ORG . This background might have explained his detention in DATE . At the time of his appearance before the Delegates , he was serving a DATE prison sentence for ORG related offences .", "PERSON", "Mr PERSON was born in DATE and at the material time was a practising lawyer in ORG . His work involved both civil and criminal cases , including ORG defendants . He had visited some clients in the various regional prisons .", "Around TIME on DATE some CARDINAL policemen , gendarmes and members of a special team went to the applicant 's house and made a TIME search , without asking his permission and without any explanations . All his personal correspondence , articles and reports which he had written , and books which they considered to be illegal , were seized . However , the latter had all been lawfully purchased from book shops . A report was drawn up , listing the seized items . Nothing was ever returned to the applicant . Some of the materials were put in the prosecution file .", "Mr PERSON was escorted to hospital by police superintendent PERSON , where a certificate of good health was delivered . He was then blindfolded and taken to the ORG provincial gendarmerie command in a taxi , during which trip he was punched and insulted . He was severely beaten on arrival , causing him earache . He was then thrown into a cell . He believed he was at the ORG interrogation centre of the gendarmerie in the PERSON neighbourhood of ORG .", "DATE he was interrogated , double blindfolded . CARDINAL people seemed to speak . He was asked why he went to the prisons to talk to political prisoners ; why he took on their defence ; why he was a member of ORG ; why he prepared reports , inspected and gathered evidence of human rights abuses ; and what connections he had with the ORG for whom he was said to be working . He was insulted , kicked , slapped and beaten during the interrogations , as well as being threatened with death .", "PERSON made allegations against him . Mr PERSON knew Mr Güven , who had been present as a prisoner 's representative when he had visited clients in prison . Although blindfolded , he accepted that he had been confronted with PERSON during the second ( or third ) interrogation .", "Mr PERSON denied all of Mr Güven 's allegations against him , particularly the allegation that he had brought cyanide into ORG prison . In order to mitigate his own crimes , Mr Güven had obviously made things up , copying from another ORG confessor 's statement involving a similar allegation about someone else ( paragraph CARDINAL below ) . He signed certain incriminating statements , unbeknownst to him at the time , under the pressure of torture , for fear of resuscitating a previous kidney injury he had sustained in a car accident , and of being left a cripple .", "He was kept in custody DATE ( DATE according to official records ) and recognised other colleagues who were there by their voices , such as Meral PERSON , PERSON and PERSON . PERSON , ORG , PERSON and ORG were in the corridor . PERSON , together with Mr and PERSON , were in cells .", "PERSON , PERSON who had been brought from GPE , GPE PERSON and ORG were subjected to a different form of torture than him - cold water hosing . He could tell from their screams and moaning .", "The cell in which he was detained was small , dark , damp and very cold ( below freezing ) . There was no heat or light . A filthy , worn out blanket was provided . He received a piece of stale bread once DATE , drinking water twice DATE and was allowed CARDINAL visits , at TIME , to the toilet per day .", "He was brought to a doctor on DATE who was afraid to note the applicants ' allegations of torture in the absence of any visible injury , all bruising or other injury having cleared up during his DATE detention . He told ORG about the alleged torture , but it was not recorded . ORG before whom he was brought noted some , but not all , of the applicant 's allegations .", "Mr PERSON was indicted before ORG and the proceedings were still pending .", "Prior to his detention , PERSON had reported on human rights matters to ORG and other international non - governmental organisations . He had been the Director of the ORG branch of ORG DATE . Human rights abuses were frequent in the area at that time . The ORG 's premises were bombed and he was threatened and insulted in public by policemen . In this way he was harassed in his legal practice . The articles and reports which he had written about human rights abuses and which were seized during the search on DATE were used by the Prosecutor against him .", "In the indictment , reference was made to faxes he was alleged to have sent to human rights associations in LOC . He did not know whether this was a reference to ORG . He presumed it had meant non - governmental associations .", "Niyazi Çem", "Mr PERSON was born in DATE and at the material time was a practising lawyer in GPE .", "On DATE he participated in a press conference given by ORG and lawyers of the GPE contemporary ORG , in front of the building of ORG , in order to denounce the allegedly unlawful detention and interrogation of fellow lawyers by the ORG . At some time CARDINAL , he was taken into custody .", "He was held for DATE in GPE ( the police centre for political detainees ) , then he was transferred to ORG . CARDINAL or DATE , he was taken to ORG , where he was held at the ORG provincial gendarmerie command for DATE .", "Mr PERSON 's house was searched , but not his office . Nothing was seized .", "In GPE he was taken by a team of plain - clothed policemen to an unknown destination . He was not interrogated on DATE .", "On DATE or DATE he was interrogated and accused of assisting a certain PERSON to make contact with the ORG , which organisation the latter then joined . The applicant denied the allegation . He was told that ORG had made the allegation . He had met PERSON Güven as a prisoners ' representative when interviewing clients . He was purportedly confronted with PERSON during the interrogation but , as he was blindfolded , he did not know if it was truly him . He refused to sign any confrontation report or statement , as he was not allowed to know their contents .", "During DATE of detention he was severely beaten , his hair was pulled and he was threatened with various kinds of torture . He was stripped naked and hosed down with cold water . He was deprived of sleep by blaring military and NORP music .", "PERSON was hosed too . He heard the screams of Meral PERSON and ORG under torture . He had not met these people prior to his detention . He and PERSON whispered their names to each other .", "On DATE of his release , DATE , he was taken with others to see a doctor who asked if any of them had any visible wounds . CARDINAL person , possibly PERSON , had a bruise which the doctor recorded . Any injuries to the applicant had cleared up .", "Mr PERSON told ORG and the Investigating Judge about the ill - treatment to which he had allegedly been subjected . He repudiated the statements he had purportedly given . Neither recorded the torture allegations .", "He was indicted before ORG for having connections with the ORG . He was falsely accused of such activities as transporting heroin for the ORG and taking money from PERSON to assist the financially ailing newspaper , “ PERSON ” , in GPE . Mr Güven subsequently withdrew the latter allegation . The proceedings were still pending .", "During his detention Mr PERSON was detained in a corridor with CARDINAL other people ; CARDINAL or CARDINAL people would share CARDINAL blanket . Once a day he received CARDINAL of a stale loaf of bread and was taken to the toilet first thing in the morning . In case of urgency , people would be taken to the toilet . No washing facilities were provided .", "Mr PERSON saw CARDINAL of his interrogators when his blindfold slipped whilst he was being hosed down with cold water . He saw them later when he was taken to the ORG 's office , but the escorting officer stifled any protest . He told the Prosecutor that he could identify CARDINAL of his torturers , but it was not taken up .", "When he was released by the court , he and other lawyers were addressed by a regiment commander called PERSON , and warned to be careful as they would be followed .", "PERSON", "Mr GPE was born in DATE and at the material time was a practising lawyer in ORG . Most of his cases were before ORG .", "On DATE at TIME armed men rang at his door . He opened up and they searched his apartment without introducing themselves . He was allowed to telephone a cousin , PERSON , who came over . Nothing was seized . His cousin countersigned the search report .", "He was taken into custody , blindfolded , at the ORG provincial gendarmerie command where , but DATE , colleagues of his had also been detained . He was held in a corridor for DATE ( DATE according to official records ) . After DATE he was taken to another side of the corridor where there was a blanket on the floor . TIME he was interrogated . He was accused of doing more than just providing legal representation for ORG people . His interrogators tried intimidating him by saying he was not being detained in ORG but in ORG where it was known that the bodies of “ disappeared ” persons had been found .", "He was constantly beaten when taken back and forth from interrogation , always after TIME , CARDINAL or CARDINAL times . He was kept blindfolded throughout DATE without any washing facilities . The corridor was crowded and he was unable to stretch out his legs . A piece of bread was given out in TIME , CARDINAL a loaf . In the beginning it was fresh , but after DATE it was stale and was obviously left - overs . They were given drinking water once a day and taken to the toilet twice a day . In case of urgency they would be allowed to go to the toilet . It was cold in DATE , with a fan which made the air even colder . Loud martial music was played continuously except for a TIME break during TIME .", "PERSON and PERSON were held with him . They were taken to the toilet , from where he heard them screaming and shouting . They were beaten up and hosed with cold water . Mr PERSON returned soaking wet and the applicant tried to dry his hair for him .", "He believed that PERSON and PERSON arrived after him and were in cells , as were PERSON and PERSON . PERSON and PERSON were detained also .", "Mr GPE had met PERSON when visiting clients in the ORG E - type prison where the latter was the prisoners ' representative . He was confronted with someone purporting to be Mr Güven during an interrogation , but the applicant was not sure whether it was truly him due to the blindfold . This person made remarks about the applicant 's associate , PERSON , but said nothing about the applicant . The applicant had had no prior knowledge of PERSON purported ORG activities for which he was subsequently convicted and sentenced . They had just been school friends and had shared a legal practice together .", "Later an interrogator told PERSON that PERSON had alleged that the applicant had acted as a ORG courier . Mr PERSON denied this .", "He signed certain statements , including a second fabricated search report , after being beaten and threatened with death . He was punched , slapped and kicked , with blows to his whole body . However , he was never stripped naked or doused with cold water like some of the other lawyers .", "Prior to being presented to ORG , PERSON was seen by a doctor , to whom he recounted the beatings . However , nothing was noted as he had no corroborating marks on his body .", "Before ORG , he denied Mr Güven 's allegations and that any incriminating document had been seized at his home . No such document had been openly put to him during his interrogation .", "Neither the Prosecutor , nor subsequently the Investigating Judge , commented on or recorded the applicant 's account of torture .", "Before being released on DATE , he and his colleagues were addressed by a plain - clothed officer who warned them that they were still under surveillance . Eventually he was released TIME", "DATE ORG filed an ex parte objection to the applicant 's release , as a result of which he was arrested on DATE and detained for a night at police headquarters . Then he was transferred to the Diyarbakır E - type prison . DATE he and other lawyers were transferred to PERSON prison . He saw a doctor there about a chill he had caught and internal problems .", "Criminal proceedings were still pending against him .", "Meral PERSON", "PERSON was born in DATE and was a practising lawyer in GPE at the material time .", "On DATE around CARDINAL or TIME , when ORG was closing down for DATE , the applicant and her husband were stopped by CARDINAL plain - clothed officials when they were leaving the court building . Her husband was told he was to be detained and interrogated and he gave her his personal belongings , whereupon she was told that she was also to be detained . PERSON and PERSON had been detained at the same time . They gave their personal belongings to another colleague , PERSON , who was with PERSON . They were blindfolded and there was talk of taking them to ORG where the bodies of murdered persons had been found lately .", "They were driven around , then taken into a building , separated , and left waiting , standing with their blindfolded faces to the wall for TIME . PERSON was then taken to a small room where she was ordered to hand over all her personal belongings , after which she was put in a cell , where her blindfold was removed .", "TIME she was taken out of the cell blindfolded to an interrogation room . She was made to sit on a stool and was pushed . Someone said , “ Admit that you are a courier - a courier for the organisation ” . She denied it and was slapped hard . She was threatened with electric shocks and being suspended . She was taken back to her cell to reflect on her situation .", "The following night , around midnight , she was interrogated again . She denied that she was the branch manager of ORG , and stated that she was its secretary . She was told that she had ties with the ORG . She was asked about her work for the ORG , its links with the ORG , complaints made about GPE to LOC and human rights abuses put before ORG . She acknowledged that she had denounced human rights abuses to foreign visitors and had sought to take measures to prevent further abuses . She had prepared cases for presentation to ORG . She insisted , however , that she had no ties with any illegal organisation .", "Such interrogations went on for DATE , including a more gentle interrogation when the interviewer talked with her about her work for the ORG , her opinions and the legal profession .", "DATE before being brought to court , attempts were made to get her to sign documents , the contents of which were not known to her . When she refused she was taken somewhere else , ordered to strip and hosed down with cold water for TIME , fainting at CARDINAL point . She was threatened with being tortured in front of her husband . However , she did not sign anything .", "PERSON knew PERSON as the brother of CARDINAL of her clients and a prisoners ' representative . When visiting clients at ORG prison he would be present . She was purportedly confronted with him while she was still blindfolded , but did not recognise his voice . She had been told that he had made accusations concerning her . She acknowledged in his presence that she had denounced human rights violations involving detained persons and had defended cases before ORG .", "Through a peep - hole in her cell she saw PERSON and PERSON ( who had shouted out his identity on arrival in the corridor ) standing naked in the toilet , which was near her cell . They were hosed with cold water twice and she heard screams and shouts .", "PERSON and PERSON were in the cell to her left , PERSON to her right . Across from her was PERSON who cried loudly “ Do n't do this ” . PERSON and PERSON were kept in the corridor , where they and others were kicked and insulted .", "She was in a large , damp cell on her own with CARDINAL pieces of wood on the floor and a disgusting blanket . It was very cold . There was no heating or lightning . She was only allowed out for interrogation and the use of the toilet morning and TIME . In TIME she was given a piece of bread , sometimes fresh , sometimes stale and sometimes obviously left over from someone 's meal . There were no female officials or separate sanitary facilities for women .", "On DATE she was put before a doctor , to whom she said she was sick . He refused to examine her or assess the cough she had , only being prepared to note visible injuries from ill - treatment .", "On DATE she was brought before a Public Prosecutor , PERSON , and an Investigating Judge , PERSON , to whom she recounted her ordeal in detention , but neither showed any interest .", "They failed to acknowledge her ill - health even though , unusually , she had to sit down in front of them rather than stand up . They ignored her claims that she could identify her torturers .", "Before being released , she and other lawyers were addressed by a gendarme regiment commander called PERSON , who warned them that he knew that suspicious dealings were being carried out in the guise of human rights ' advocacy .", "After her release , she was so ill that on DATE she went to a doctor , who diagnosed pneumonia and ordered her to stay in bed for DATE . He gave her a medical certificate to that effect . She did not tell the doctor what she had experienced in detention .", "NORP Some time , perhaps in DATE , on TIME before the general election , PERSON was followed by ORG and CARDINAL gendarmes , CARDINAL of whom was from the ORG . She and her husband were then followed by other people . She contacted fellow lawyers and ORG , and talked to ORG , PERSON , who advised her not to walk alone in the street .", "PERSON", "PERSON was born in DATE and was a practising lawyer in GPE at the material time .", "The applicant gave the same account as his wife concerning their being taken into detention at the ORG provincial gendarmerie command ( paragraphs CARDINAL - CARDINAL above ) . He was separated from her in the detention centre and taken to a cell upstairs . In the cell his blindfold was removed . TIME later he was taken blindfolded to a room downstairs and asked questions about his position in ORG , of whose administration he was not a member . He only worked in the same building as the ORG , on the same floor .", "At a second interrogation DATE he was accused of helping the ORG , acting as a courier between prisons , in some of which he had never set foot , as could be verified from prison visiting records . Similar accusations were made concerning certain provinces of whose whereabouts he was unsure . He denied any such involvement .", "During the CARDINAL or QUANTITY interrogations , he was threatened that he would be tortured - suspension and electric shocks - in front of his wife , during which both of them would be naked . He was frequently slapped , kicked and pushed on his way to interrogation and punched a couple of times during interrogation . On DATE of his detention , he was taken to sign documents , the contents of which were unknown to him . He signed out of fear of what might happen to his wife . On his signature he wrote “ ORG ” , indicating his refusal .", "There was a wooden board in his cell . It was dark and cold . He was taken to the toilet in TIME where there was drinking water . In TIME he was given a piece of bread . There was so little of it that he was constipated throughout his detention . He had a stinking CARDINAL - torn blanket which was too small to cover himself with , so he wrapped it around his feet .", "DATE before the end of this detention period , loud music was played and he heard horrible screaming . He learned afterwards that probably people had been hosed with cold water .", "He managed to make his wife aware of his presence in the building by coughing loudly , to which she replied with a similar cough .", "He was purportedly confronted with ORG during his detention , although he did not see him because of the blindfold . PERSON and PERSON had represented his brother . Mr Güven was also a prisoners ' representative and was present during client interviews in the PERSON prison . PERSON had not accused him of anything at that point .", "NORP Before being brought before ORG he was taken to a doctor who refused to examine the applicant 's lung complaint . He was only prepared to note visible marks or bruises , of which the applicant apparently had none .", "He was video filmed when brought before ORG . This film was relayed on television .", "He gave a statement to ORG and Investigating Judge and told them of his ill - treatment .", "Before being released he and his colleagues were addressed by gendarme regiment commander , PERSON , who called them “ slime ” and warned that he would not forget them . The applicant arrived home TIME on the DATE .", "After his release he consulted a doctor at ORG , who diagnosed pneumonia . He did not recall what became of the medical certificate which he was given .", "NORP The following DATE , DATE , he was re - arrested following ORG ex parte objection to his release . He was remanded in custody at FAC prison for DATE before being transferred to GPE prison for DATE . At a hearing on DATE he was released . Proceedings were still pending before ORG .", "He consulted the ORG prison doctor who prescribed medicine for him . He did not ask for a certificate .", "Vedat Erten", "Mr Erten was born in DATE and was a practising lawyer in GPE at the material time .", "On DATE when leaving ORG TIME , he and a trainee lawyer were stopped by CARDINAL plain - clothed officials who asked for their identity cards . After confirming Mr ORG 's identity , he was obliged to go with them , giving his personal belongings to the trainee .", "He was put in a car , blindfolded and taken to the ORG provincial gendarmerie command where he was kept for DATE ( DATE according to official records ) . He had been aware that colleagues of his had been detained in DATE . According to prosecution sources , this was because of accusations being made by a ORG confessor called PERSON . He realised he was being detained for the same reason , and was told as much by the detaining officers .", "On entering the building he was asked if he was ORG and , when he confirmed that , he was slapped twice in the face , causing him to fall over . He was made to crouch down for TIME and then told to strip off his clothes . Mention was made of taking him to a helicopter which , from a previous experience as a student detained by the ORG in DATE , he had understood to refer to the form of torture known as “ NORP hanging ” . Ultimately his clothes were slung back at him and he was taken to some narrow place QUANTITY along where he was obliged to sit on a wet concrete floor , which smelt of toilets . He was ordered not to remove his blindfold . He heard the voices of some of his colleagues .", "He was given CARDINAL of a loaf of bread a day , sometimes a bit more if he asked for it . Drinking water was available in the toilet area where he was taken twice a day . CARDINAL day no bread was distributed and he sensed that his colleagues must have been staging a protest . Loud music was played .", "His interrogators ate food smelling of oil , onions and tomato purée . They threw their left - overs into a bin in the toilet , which the applicant took as a provocation to humiliate the detainees even more should they take food out of the bin in desperation . However , no prisoner touched the bin . Once when Mr Erten complained of the way the prisoners were being treated , he was kicked in the face , belly and chest . Thereafter he would be kicked whenever an official passed by .", "After DATE in custody , he was taken for interrogation . He sat on a stool and was allowed to remove his blindfold but was blinded by a very bright lamp shining directly into his face , which made it impossible to see anyone or anything else in the room .", "He was ordered to “ tell ” and when he replied that he had nothing to say , he was beaten up . He was accused of acting as a ORG prison courier , which he denied . He was again beaten with the light off . He was forced to confess that he had taken several diaries , pens and cigarettes between prisons .", "In the narrow place where he was held , he could hear PERSON appalling screams , and his and PERSON chattering teeth after they had been hosed with cold water . He heard Meral PERSON sobbing . He heard someone threatening PERSON with death if she did not tell all , after which she cried , “ They 'll kill me . They 're out to get me . If I do n't die , I 'll be killed outside . ” PERSON was slapped when he tried commiserating with PERSON , whose clothes were wet . Mr Erten was also slapped for chasing a fly from his face when the guard thought he was tampering with his blindfold .", "DATE before being brought to ORG he was made to sign documents , the contents of which were unknown to him , for fear of being beaten up again . He heard other colleagues screaming and shouting , “ Do n't kill me . That 's enough ” , both before and after this document session .", "He was taken to a doctor who refused to examine the applicant fully , just noting that the applicant had MONEY on his face . The doctor did not therefore see the marks which were left after he had been beaten on the belly , back and the nape of his neck .", "DATE , TIME , he was taken to ORG , who told him that he was accused of being a ORG courier both between prisons and between ORG members at large and prisoners . He was also accused for the first time of carrying on his person a document concerning the function of a ORG co - ordinator in the region .", "Mr Erten claimed that he had been illegally framed and that the documents allegedly found on his person were inadmissible fabrications . A record of a purported confrontation with PERSON was read out to him , but the applicant could not confirm that Mr Güven was indeed the person who had been presented to him during an interrogation , and who had , in a forced , hoarse voice , accused the applicant of an offence . He had met PERSON when the latter was a prisoners ' representative accompanying the applicant 's clients at ORG prison .", "Mr Erten told ORG , and subsequently the Investigating Judge , that he had been tortured and that the statements had been signed under duress . He told the Judge that he had resisted pressure from ORG to act as a courier . The Judge released him . However he was kept blindfolded and returned with his colleagues to the interrogation centre . He was convinced they were going to be killed . Instead they were addressed by an officer who uttered warnings . He was released on DATE .", "ORG lodged an ex parte objection to Mr ORG 's release . Consequently , he was taken back to court DATE and remanded in custody at FAC prison . He was again presented to the court on DATE and released . He told the court that he had been tortured and that the statements which he had signed were false . He denied the charges made against him .", "PERSON", "Mr PERSON was born in DATE and was a practising lawyer in GPE at the material time .", "On coming out of ORG on DATE , he and PERSON were stopped by members of the security forces who they guessed were from the ORG . On disclosing their identities they were put in a car where they waited while a similar procedure was performed in respect of PERSON and PERSON . They were taken to the ORG provincial gendarmerie command , blindfolded . The applicant and PERSON were put in cells on the upper floor , where he was held for DATE ( DATE according to official records ) .", "He had anticipated his arrest as several of his colleagues had been detained DATE . On TIME he was taken for interrogation . In general he was made aware that the ORG confessor , PERSON , had alleged that he was in league with ORG prisoners , had acted as a courier for them , and had smuggled unlawful materials into prisons , e.g. a flick knife . The applicant denied the allegations .", "The applicant 's brother had been detained in the same prison as Mr Güven . PERSON also attended all interviews with clients . The applicant 's brother said he had been under pressure to join the ORG and Mr Güven had told the applicant that his brother had not kept his promises .", "The applicant was confronted , blindfolded , with PERSON . He signed certain statements , the contents of which he did not know , because of the psychological pressure brought to bear on him . During interrogation no mention was made of NORP human rights associations . He had assisted ORG prepare papers for clients . He was unaware of what the NORP reference could mean . He himself had never filed a petition for a client with ORG .", "PERSON", "Mr GPE was born in DATE and was a practising lawyer in GPE at the material time .", "He gave a similar account of his detention on DATE as PERSON ( paragraph CARDINAL above ) .", "In the ORG provincial gendarmerie command he was made to crouch down , face to the wall , in a corridor . After TIME or CARDINAL he was put in a cell . He did not know if he had been detained by the ORG or the anti - terror department of the police . He was not told of the reasons for his detention even when he asked for explanations .", "He was not taken for interrogation for DATE . When he was interrogated , he was questioned about the cases he had defended before ORG and asked if he had been paid . The implication was that there was a link between his cases and the ORG . He was accused of assisting ORG detainees by acting as a courier and not charging fees for his work . He was told that the ORG confessor , PERSON , had made certain allegations about him and other local lawyers . Mr Güven had been the prisoners ' representative and attended the consultations he had had with his clients at FAC prison .", "He was confronted with someone purporting to be PERSON , but did not recognise him due to the blindfold . Mr Güven implied that the applicant 's legal work made him a possible ORG sympathiser but no specific allegation was formulated . r Güven acknowledged that he had not given the applicant any notes to pass on as a courier .", "He signed various statements . Being under physical and psychological duress , he was unaware of the contents of the statements except for a report which was headed “ ERNK Receipt ” , being evidence of financial assistance to the ORG , which document he had never possessed .", "A medical certificate dated DATE recorded that he bore marks of blows and violence on his body . He saw the doctor before being brought before ORG and released . Once formally released , he and his colleagues were subjected to a warning speech by a gendarme .", "The applicant discovered later that his name had never been mentioned in any of Mr Güven 's earlier statements to the police . Afterwards he thought that he must have been detained because of his membership of ORG and his assistance in preparing cases to ORG .", "He stayed out of ORG for DATE as there was an in absentia arrest warrant issued against him .", "Gazanfer Abbasioğlu", "Mr PERSON was born in DATE and was a practising lawyer in GPE at the material time .", "On or around DATE , coming out of ORG , he and several colleagues were subjected to an identity check . Several lawyers had previously been taken into custody and , DATE , others were detained , but not the applicant .", "On DATE he was at a colleague 's office when plain - clothed policemen and gendarme officers entered and checked his identity . He was told he was being taken into custody . He was taken by gendarmes to see a doctor . He was then taken somewhere , blindfolded , where he realised there were some of his colleagues . He was not given any reason for his detention until TIME , when he was accused of being a member of and assisting the ORG . He denied the allegations .", "He had known earlier that ORG had become a confessor ; it was then that the arrests had started . He had met PERSON as a prisoners ' representative who was present when the applicant interviewed a client accused of political offences . Whilst blindfolded , he was confronted with PERSON during his first interrogation . He recognised his voice . He was accused of being a member of and assisting the ORG , and of constantly defending ORG cases .", "NORP On release and after examining his case file , he realised more detailed false allegations had been made , such as that of being a courier .", "The applicant signed certain documents under duress in order to avoid being tortured as PERSON , Meral PERSON , PERSON and ORG had been . He did not know the contents of those documents at that point as he had been blindfolded .", "After being technically released by the Judge , he and his colleagues were subjected to a warning speech by the gendarme regional commander , PERSON . The applicant understood the speech as a threat . It was only then that he was actually released .", "PERSON", "Mr PERSON was born in DATE and was a practising lawyer in GPE at the material time .", "Mr PERSON was leaving ORG at lunchtime on DATE with a colleague when he was stopped by CARDINAL people in plain - clothes who checked their identity . They said they were from the gendarmerie intelligence unit . After confirming the applicant 's identity , he was told that he was to be taken into custody .", "He was put in a vehicle and his scarf was tied over his eyes . He was driven for TIME , got out of the car and was told to wait by a wall . Later he was taken into a building and made to crouch down in a corridor where he heard the whispers of some of his colleagues , such as ORG and PERSON . They sat on a blanket on the concrete floor for DATE ( DATE in custody according to official records ) .", "He was not told why he had been detained although he knew that there were colleagues already in custody who , as rumour had it , had been incriminated by the ORG confessor , PERSON . He had met PERSON Güven as a prisoners ' representative in ORG prison . He had accompanied the clients whom the applicant had interviewed . The applicant did not suspect that Mr Güven had made allegations against him as he had no connections with him whatsoever , either professional or otherwise .", "DATE he was taken for interrogation and accused of being a courier for the ORG between prisons , and assisting and harbouring the ORG . Someone calling himself PERSON was apparently present and urged the applicant to confess like him . The applicant said to this person , whom he presumed to be PERSON , that he knew very well that the applicant had not carried notes between prisons .", "DATE there was a terrible noise , with martial music blaring , and he heard people being ordered to sign documents or be killed . He was similarly threatened with torture - electric shocks - and felt obliged to sign documents , the contents of which were unknown to him . He had heard PERSON , PERSON and PERSON being subjected to cold water ill - treatment .", "Abdülhakim Güven", "Mr Güven was born in DATE and had no specific profession other than trading . At the material time he was remanded in custody in ORG prison , charged with membership of the ORG . In DATE he had left the ORG over a disagreement and became a confessor , giving information to the ORG about the ORG , starting with certain lawyers whom he had known before his imprisonment ( which started in DATE ) . The ORG had made him the representative of its organisation in prison and he was in charge and supervised all members ' contacts with the outside world , including their defence lawyers . This was part of the education given to ORG associates .", "Mr Güven had little recollection of the events and allegations he had made concerning the applicants , but confirmed many leading questions from the Delegates and the parties , which resulted in the following account :", "Mr Güven confirmed a statement he had given in DATE ( paragraph CARDINAL below ) , which revealed that he had met a ORG member , code name GPE , at the house of PERSON , and that he had given Mr Elçi messages for certain ORG members outside the prison . Mr Elçi sometimes brought back the replies . He had known Mr Elçi since they were teenagers .", "As regards PERSON , all he could remember was that PERSON had had contacts with the ORG in the area .", "Mr Güven confirmed his allegation that in DATE PERSON had brought cyanide poison into the prison in order to harm ORG opponents who were putting pressure on members ' families . Mr PERSON had handed over the poison to Mr Güven directly . He had no comment on the statement of another ORG confessor , ORG , who had earlier identified someone else as having brought the poison into the prison ( paragraph CARDINAL below ) .", "Without recalling details , PERSON said that PERSON had contacted a ORG association in Bursa prison . He stated that PERSON , ORG , PERSON , PERSON , ORG and ORG had all acted as couriers between prisons and with outsiders .", "He confirmed his allegation that PERSON had given him a knife in prison , which PERSON had asked PERSON to procure . He had no comment on the earlier statement made by ORG that he had obtained the knife from someone else ( paragraph CARDINAL below ) . Mr Güven did not recall what had happened to the knife or the cyanide poison . Perhaps the knife had been confiscated in a later search before any harm was done .", "Mr Güven said that he had had CARDINAL or CARDINAL contacts with PERSON who , as far as he could remember , had helped in the exchange of notes once or twice . PERSON and PERSON had acted as couriers .", "Mr Güven was unable to specify the content of any particular note or document which any applicant had passed on , given the voluminous material involved and the passing of DATE . He remembered that PERSON had been an GPE lawyer who had visited a client at FAC prison , and PERSON had received notes from the ORG and Gaziantep prisons via Mr PERSON . He had no special information about the services which PERSON and PERSON had rendered the ORG . He could not recall exactly when he had met PERSON . According to information he had obtained from his friends , PERSON considered that he could trust PERSON and PERSON .", "Mr Güven had made statements to ORG about all the lawyers and had repeated them before ORG , perhaps in DATE . However , he had not answered the summons to attend the applicants ' ORG hearings out of concern for his personal safety , having made an enemy of the ORG .", "Mr Güven said that there may not be records of any visits to himself or other ORG members in prison by the applicants because those lawyers could have given any remand prisoner 's name and entered the prison , thereby seeing PERSON or his associates .", "He confirmed his confrontation with certain lawyers during their interrogations . Most of them were co - operative . Only PERSON and Meral PERSON objected to certain statements . Neither party was blindfolded during the confrontation . CARDINAL officers were always present . His signature on the confrontation report only confirmed the accuracy of what he alone had said .", "Mr Güven denied a statement in which he had purportedly confessed to carrying weapons which were subsequently used to kill CARDINAL police officers prior to his apprehension in DATE . He later conceded that he may just have forgotten the details . He acknowledged his involvement in a plan to kill a prison officer while he was still a ORG associate remanded in custody . He also acknowledged that some of his statements about being tortured during interrogation to make him sign incriminating statements had been lies .", "Prior to becoming a confessor , he had expected to serve DATE in prison ( a DATE sentence with early release ) , rather than receiving the death sentence or life imprisonment for his role in the death of the police officers . He denied that , in order to avoid dangerous repercussions from the ORG when he became a confessor , he had given the names of persons who had had no connection whatsoever with the ORG . In no way did the advantages of the Remorse Law lead him to accuse the applicants . However , after the life sentence was imposed on him , his confessor statements permitted his release from custody . Since then he had been a target for the ORG , although he acknowledged that he had been able to move around freely in GPE . He had changed his identity and was initially provided with a little financial assistance by the gendarmerie , from Commander PERSON . He knew that , if he gave false testimony as a confessor , DATE term of imprisonment could be added to his original sentence .", "Mr Güven denied being encouraged by any officials to denounce the applicants , or ORG , or to become a confessor . He left the ORG because their original aims , in which he had believed , had been undermined , and they were inflicting damage on the NORP people .", "Mr Güven said that the lawyers ' confessions had been recorded on videotape . His confrontations with them had lasted DATE from CARDINAL or TIME until night - time , DATE after the lawyers had been apprehended . His own legal representative , GPE , had suggested the applicants ' names to him as being people who were “ patriots and could join the struggle ” . It was ORG established policy that its members should systematically refute any incriminating statements they had made before a ORG or Investigating Judge .", "He knew of a PERSON who had been a ORG member but , once in prison , she had been isolated because she was suspected of being a ORG agent .", "PERSON", "PERSON was born in DATE and she had been detained on remand since DATE ( DATE ) for ORG offences , in particular the unlawful possession and transport of weapons . The criminal proceedings against her were still pending .", "PERSON had consulted the applicant , PERSON , for legal advice in DATE prior to her detention , and they had become friends . Under torture , PERSON had been obliged to become a confessor and had signed statements , the contents of which were not fully known to her . She discovered later that in such a statement , dated DATE , she had denounced PERSON , and other local lawyers whom she had never met , as being ORG couriers . However PERSON had not been her representative for these pending criminal proceedings and PERSON had had no contact with PERSON or any other of the cited lawyers during her detention . There was no way , therefore , in which they could have delivered documents for her .", "Before ORG on DATE , PERSON refuted the contents of her original statement ( paragraph QUANTITY below ) .", "PERSON alleged that just before being brought before ORG she saw somebody , with a name like PERSON , on a higher floor of the court building who indirectly threatened her with unpleasant repercussions if she did not give testimony to the Delegates in the ORG 's favour . He was apparently some expert sergeant .", "PERSON Eğilmez", "Dr PERSON was born in DATE . At the material time he was a forensic expert at ORG . Detainees were referred to him for a medical examination before or after they were taken into custody .", "On DATE Dr Eğilmez carried out an oral and external physical examination of the applicants . It was early in the morning . The security forces stayed outside and he examined them in groups of CARDINAL or CARDINAL .", "From the external examination he saw that CARDINAL of the applicants had a simple lesion on his knee which he recorded . Although individuals had complained of ill - treatment , the doctor was not convinced of any systematic ill - treatment . CARDINAL or QUANTITY people had said they had breathing difficulties . He began examining CARDINAL or CARDINAL of them with a stethoscope , whereupon the others decided not to be examined and withdrew their complaints .", "They were all examined stripped to the waist . They were asked whether they had any marks on their bodies and they were told that , if there were , he would make a detailed examination . Apart from the bruised knee mentioned above , no one complained of any visible marks , although they all said they had been beaten . He saw MONEY himself . It was rare that he was presented with such a case and , when he was , he recorded it . DATE he re - examined ORG and ORG who complained that they had been struck on their buttocks , but Dr PERSON found MONEY .", "He acknowledged certifying DATE , on DATE , CARDINAL bruises on the lower knee of ORG . It had escaped his attention in the CARDINAL earlier examinations because it was not shown to him . Sometimes ladies are reluctant to reveal parts of their bodies .", "Hüsniye Ölmez had been examined on DATE in the company of Meral PERSON . There were MONEY on the latter . Another doctor had certified that PERSON was suffering from pneumonia , which she had not mentioned to Dr PERSON on DATE . At that stage one would have expected her to show a fever , coughing and phlegm . However , she made no complaint .", "Pneumonia is not a traumatic lesion . It can be contracted after catching cold and is often preceded by bronchitis . It would take DATE to develop and would induce fever . An x - ray would be needed to establish the condition and hospital treatment would also normally be required .", "Dr PERSON could not remember how the applicants looked - whether the men were clean - shaven , unwashed or the like . He did remember , however , that they did not look tired , worn out or feverish .", "As a forensic doctor his task was to record findings , not to take a patient 's medical history or make a clinical examination . This is why he did not note people 's general complaints and why he would only record visible marks .", "ORG If a man had had his testicles squeezed and had complained to him of that fact , Dr PERSON would have expected to see sensitivity in the genital area , reddening and swelling . None of the male lawyers complained of this , and he would not have examined genitalia unless asked to do so by a complainant .", "The first question addressed in such examinations was whether there were any signs of blows , force or violence . However , if the individual was found to be suffering from an illness , such as a fever or heart condition , he would have noted the need for follow - up treatment in his report .", "Around the relevant time he prepared CARDINAL reports , of which PERCENT were custody examinations .", "The examinations he conducted in the present case were recorded in a single report .", "Dr Mahmut Demirel", "Dr PERSON was born in DATE and was a general medical practitioner at the material time . He did not recall having certified on CARDINAL DATE that PERSON had had pneumonia . He had known her previously when she was a childhood neighbour .", "Pneumonia would disclose symptoms of fever , malaise and lateral pain from coughing . It did not have to be preceded by bronchitis , but might be . A stethoscope examination could distinguish between the CARDINAL . How someone reacted to the illness depended on his / her physical condition . Such a person would be able to stand up with assistance .", "It may be caught by being exposed to cold . The diagnosis may be confirmed by an x - ray . Bed rest and antibiotics may be sufficient treatment . It is an acute illness which may not show any symptoms DATE .", "Eşref GPE", "Mr GPE was born in DATE . At the material time he was a senior gendarme colonel , responsible for law and order in the province of ORG .", "There was an interrogation and detention centre under his command within the city boundary . This unit was headed by Lieutenant Colonel PERSON , the director of operations . The person in charge of interrogations was a non - commissioned officer ( “ ORG ” ) , PERSON .", "NORP The detention centre had been inspected by ORG for the Prevention of Torture ( the “ CPT ” ) DATE and had been found to be up to standard after improvements had been made . It was not overcrowded . If it was full , detainees would be kept in their original place of detention awaiting transfer .", "Mr GPE remembered the detention of the applicants as it was an unusual incident . ORG had made certain allegations against them concerning events in prisons , and the role of these lawyers was raised , albeit not proved .", "Mr Güven , being a top - ranking ORG member , had given much reliable information , not just about the lawyers . He had repented and was entitled , like every citizen , to take advantage of the law of the country . Mr GPE had given orders for him to receive a small sum of money , MONEY , for his personal needs . Mr Güven did not enrich himself by his confession ; he only received bare subsistence from the ORG .", "The gendarmerie had its own intelligence too . Following a rural operation and a skirmish , a ORG shelter was captured which contained archives , including a list of CARDINAL people to be killed . His own name was at the top of that list . It was said to have been smuggled out of prison in a fountain pen carried by a lawyer . Lawyers were serving as couriers for the ORG , but did not confess to this in order to protect themselves from a ruthless ORG reaction .", "As the person responsible for law and order in that region , he had been the person most responsible for the decision to detain the applicants . However , before the decision could be implemented it was necessary to notify ORG , as his superior , the Regional Governor and ORG . The actual decision to detain had to be taken by ORG . There was only a single decision taken to detain all the applicants , although they could not all necessarily be taken into custody at the same time .", "The detention centre at the time could hold CARDINAL people ( later reduced to CARDINAL on the recommendation of the ORG ) . He denied that CARDINAL people would have been held there , as might have been suggested by the number of names in the custody ledger . CARDINAL person was held in each cell , according to the rules , so that they could not communicate with each other and co - ordinate their stories . When there were too many arrivals to accommodate all the detainees in the detention centre , other places of custody - at the central gendarme station , the provincial gendarmerie regiment or the police headquarters - would be used , but this would be recorded in the custody ledger .", "He denied the possibility that people had slept in a corridor . His staff were instructed to treat detainees warmly and humanely . There was no hostility towards the applicants . Inhuman treatment was impossible .", "Each cell had a collapsible camp bed , with a wooden floor . A blanket was given to each detainee . The cells were not dark although , on the ORG 's recommendations , lighting and ventilation were later improved . At the end of the stairs there was a toilet and bathroom . There was a hot water heater in there now ; he could not remember if it had been installed at the time . When a detainee needed to use the toilet , he would be escorted there . There was heating in the corridor which was sufficient . There were no women guards or separate facilities for women .", "Three meals a day were served : a bread breakfast , a light lunch at TIME consisting mostly of bread , and in TIME detainees were served the same meals as the soldiers , with not CARDINAL dishes . Water was freely available .", "Mr GPE was not a specialist in interrogation and did not attend such sessions . He was kept informed of their progress by PERSON ORG .", "A specialised interrogation officer was alone with the detainee and another typed the record . Video recordings were made too , which included the CARDINAL applicants . The tapes had been handed to ORG . He had watched the tape of the applicants twice and was struck by the naturalness of their facial expressions . The lawyers ' statements had not been obtained by force , as was shown by the fact that a few of them refused to sign the various documents . Nothing happened to those people who refused .", "After their release he met the applicants and they had a friendly private chat , over some tea . They told him that they had experienced certain difficulties , that they had not committed any crime and that it was impossible for them to have done so . However , they did not allege any ill - treatment . If they had done so , he would have replaced the interrogators and taken legal measures against them , as was his duty . However , nobody who was detained during his DATE in that job was ever injured or killed . The ORG once arrived at TIME but found nothing untoward and heard no complaints , otherwise they would have reported it .", "When most of the applicants were released on DATE they were brought back to the detention centre to collect their personal belongings and Mr GPE addressed them collectively . They had not been blindfolded once released . He congratulated them that the matter was over and said , inter alia , that they should be more careful and that everyone 's existence depended on that of the State . He exhorted them to be good in their future conduct , because they could see that people who committed crimes would be brought to places like the detention centre . Tea was served . The applicants said they had been wronged and slandered . After TIME they left , shaking hands with him and they were taken to the town centre , as they had requested . A minibus was put at their disposal with a military escort . He did not see them again .", "Mr GPE accepted that some of the applicants may have found him threatening , but others found him to be friendly . He had had the power to do whatever he wanted with them at that time - torture , ill - treatment , brute force , etc . ; instead he had offered them tea and transport .", "However , such allegations were only made by people who worked against GPE - as had been legally established . Nevertheless , he extended a friendly hand to them . The judicial authorities had a separate duty to perform from his .", "He denied having threatened any of the applicants and was embarrassed by any such allegation .", "PERSON", "Mr PERSON was born in DATE and at the material time he was the law and order director of the ORG provincial gendarmerie command . He supervised , inter alia , the interrogation unit .", "The detention centre in ORG could hold CARDINAL people in individual cells with peepholes for surveillance . The floors had wooden grids and collapsible beds . Blankets were provided . There was lighting and heating in the corridors which filtered into the cells . People were taken to the toilet according to their needs and there was a bathroom . Interrogations were held in a special room . Breakfast and lunch were offered , possibly below the standard soldier rations , but a full evening meal was provided .", "The custody records were accurate ; the CARDINAL people mentioned in the record would not all have been held at the centre . They would have been in the attached units ( of which there were around CARDINAL ) . Interrogations were performed by individual , trained specialists accompanied by a typist . In important cases , interrogations were recorded . The detainee was not blindfolded .", "Mr ORG had never met any of the applicants . Reports were made to him and he had never heard any allegations of ill - treatment . He had not been involved in the decision to detain them , nor had he seen them on their release . They would not have been blindfolded on their way from the court to the detention centre after their release in order to fetch their personal belongings .", "Mr Bozoğlu was unable to say whether the law required that an interrogator put his name to a statement rather than just his service code number , as had occurred in the present case .", "PERSON", "PERSON was born in DATE and was the gendarme captain and commander of the district centre of ORG at the material time . He had been under the direct orders of Mr GPE .", "Based on information from a confessor , PERSON , the gendarmerie obtained the ORG 's permission to detain the CARDINAL lawyers . The regiment commander , ORG at ORG and the Provincial Governor were aware of that authorisation . When people were taken into custody , ORG was contacted to determine the length of the detention period . Nobody could be taken into custody without the ORG 's knowledge and approval . His verbal instructions on the matter were equivalent to an order , but the instructions would be later recorded in written form . It was the decision of ORG to detain the applicants in the present case . A record would have been kept indicating the name of the person who had informed the ORG and had requested his authority to detain . The gendarmerie could take people into custody on their own initiative as long as the judicial authorities were informed and approved the decision . Written authority could exceptionally be given after a person had been detained , but in such a case the authority would be back - dated to DATE when the person had been taken into custody .", "Mr Güven 's accounts confirmed other information in the gendarmerie 's possession , the most important of which had been publications , documents and materials which were deemed unlawful and had been found in prisons during searches .", "PERSON did not participate in the interrogation , but followed the results . The chief of interrogations at that time was PERSON . There was a special interrogation room measuring QUANTITY or more in the ORG provincial gendarmerie command . CARDINAL person interrogated . If a statement were to be taken , there was sometimes a typist , although the statement was recorded elsewhere . In the meantime , notes were taken by the interrogator himself which were not archived . People were never blindfolded during interrogation , but were under spotlights which prevented the interrogators ' identification . The detainee sat on a stool in a comfortable environment .", "Adjacent to the interrogation room was a listening room , connected electronically , so that questions could be relayed from the ( unseen ) chief interrogator to the interrogator , to be put to the detainee .", "NORP The results of the applicants ' interrogations were reported verbally to PERSON , but he no longer remembered what was said . The interrogations were carried out strictly according to the law , despite allegations to the contrary in the media and by the ORG .", "Some of the lawyers refused to sign certain documents , such as the confrontation reports with ORG who had recognised all the applicants and made certain allegations . People were free not to sign such documents .", "The jurisdiction of the police and gendarmerie could sometimes overlap and they could operate within each other 's jurisdiction provided that there was proper notification . The external security of places of detention was the gendarmerie 's responsibility . Accordingly , even though most of the applicants were arrested within the municipal boundaries of ORG , under police jurisdiction , it was for the gendarmerie to effect their detention and interrogation .", "PERSON acknowledged that the applicant PERSON was detained with others on DATE . He could only assume that there must have been good reason for that even though Mr GPE 's name did not feature in the previous statements of PERSON , and the applicants had not at that stage been interrogated , so his name would not have arisen during questioning . PERSON denied the suggestion that Mr GPE had been detained at random .", "The applicants immediately accepted the allegations against them , but it took DATE to verify and investigate the case in depth , and to consult the judicial authorities . It was out of the question that the applicants had had to wait DATE unnecessarily before being brought before the Prosecutor to make statements .", "CARDINAL people were kept in cells at FAC . The others would have been kept at the provincial central gendarmerie command and would have been brought to FAC for interrogation .", "The cells had wooden planks in the form of a grill to prevent contact with the concrete floor . There was a camp bed and CARDINAL or CARDINAL blankets depending on the cold . Portable electric heaters were in the corridor . It was not necessary to provide separate facilities for women .", "The interrogator 's identity could easily have been found by the judicial authorities if that had been necessary , even though his identity may not have been disclosed in any of the applicants ' statements . This was to protect the interrogators ' security and was lawful . There would be clear records still in existence of who had interrogated whom .", "Burhanettin Kayak", "", "Mr Kayak was born in DATE and was a gendarme special sergeant at the Cizre district gendarmerie command at the material time .", "On DATE he had received instructions to detain PERSON , who was to make a statement before ORG . A police team was sent to detain Mr Elçi and he was handed over to the provincial gendarmerie command DATE for transfer to ORG . He had no other information about Mr Elçi .", "Mr PERSON was not involved in the actual arrest or subsequent searches of Mr Elçi or his LOC . All seized documents were handed over with Mr Elçi to the ORG team and he had no involvement in the return of such documents .", "Mr Elçi was kept in the custody room which was QUANTITY in size and had a camp bed .", "PERSON", "Mr Yedekçi was born in DATE and at the material time he was chief of the interrogation unit at the ORG provincial gendarmerie command .", "There was a team of CARDINAL interrogators by whom interrogations were conducted under his control . From the listening room connected with a closed circuit television system and a microphone , he could intervene with the interrogators to direct questioning . He was always accompanied by someone in the listening room , but the interrogator was alone with the detainee . The interrogator would make notes of the interrogation , on the basis of which questions would be put again in an interview room and a statement typed up .", "The interrogator would sit at a table with the detainee sitting opposite him , on whom spotlights were trained . The closed circuit television system permitted relevant video recordings to be made , which in the present case were handed to the prosecutor 's office of ORG . A hidden microphone hung above the person being interrogated .", "A prisoner called ORG , the political representative in prison , was interviewed over DATE and made a statement about ORG activities . The statement ( CARDINAL pages ) was handed to ORG at ORG who then gave instructions to apprehend and interrogate certain people .", "Some of the applicants immediately accepted having acted unlawfully . Others refused to sign statements .", "Mr Yedekçi had not participated in the confrontation sessions between the applicants and Mr Güven which had taken place in the interview room . This room was not connected to the closed circuit television system and , therefore , the confrontations were not recorded on video . Mr PERSON had signed the confrontation documents in the present case .", "None of the applicants were blindfolded during interrogations . Nor did any of them allege having been exposed to ill - treatment or threats during interrogation .", "The interrogator would conduct the interview session when a statement would be typed up following the individual 's responses . There was normal lighting in that room and blindfolds were not used . The interrogator had no fear of being identified . That was his job .", "PERSON conducted the applicants ' interrogation . The statement procedure did not necessarily occur on DATE as the interrogation , but was based on the interrogator 's notes .", "Mr Yedekçi did not recall the exact reason why PERSON was detained on DATE , DATE as Mr Güven 's incriminating statement , even though Mr GPE 's name had not featured in that statement .", "People were usually told when they were apprehended why they were being detained and it had to be recorded in the apprehension report . Although there was no specific mention in any of the applicants ' apprehension reports , they must have been informed orally .", "NORP If people were unaware of the reason for their detention , his staff would tell them .", "The detention area had CARDINAL floors , with CARDINAL cells , later reduced to CARDINAL after the ORG 's intervention . Each cell had metal doors with slits in the upper part . There was a wooden plank on the floor and a military camp bed . Detainees received the same food as the soldiers , and their needs were catered for . There was fuel central heating which had replaced burning stoves .", "PERSON", "Mr PERSON was born in DATE and at the material time was ORG ( no . CARDINAL ) at ORG .", "In GPE it was ORG at ORG who gave orders to detain people . Investigations could be instigated on the basis of verbal instructions ; the law did not require a written order .", "Mr. PERSON stated that he had had nothing to do with the apprehension of the present applicants . They were apprehended on the instructions of ORG , PERSON , in accordance with LAW . Such instructions could have been given orally . Mr. PERSON did not know if ORG would have kept a note of such oral instructions .", "The applicants were brought before him on DATE . He explained the charges against them and asked to hear their defence . He read out their statements as recorded by the gendarmes , listened to their defence and recorded fresh statements .", "They denied the charges and complained of ill - treatment , all of which was recorded . If there were corroborative evidence of ill - treatment in a file , he would take action .", "He had been a Prosecutor for DATE by then and knew what an ill - treated person would look like . So he considered that the applicants ' mere allegations were insufficient to be taken seriously . The bruise found on someone 's knee did not indicate torture . PERCENT of detainees connected with terrorist offences claimed to have been tortured . It was a mere defence tactic . He never came across a case which required further action from him because of alleged ill - treatment . Anyway , it was not his duty to investigate allegations of torture , being a ORG , and the applicants , all lawyers , could have filed complaints in the normal courts .", "Mr PERSON had drawn up the indictment in the applicants ' case based on ORG considerable evidence , and the incriminating documents about the ORG found in the offices of CARDINAL of the lawyers .", "The search of PERSON office revealed a note addressed to “ Comrade PERSON ” , bearing the stamp “ ERNK ” ( the political wing of the ORG ) and sent to him by the ORG . A note addressed “ to the office of the co - ordinator of ORG being the ORG 's name for ORG ) was found in ORG possession . It was a note written to ORG members in the mountains and who were active in the area . A note with the stamp “ ERNK ” was found on PERSON . A note addressed to “ Comrade PERSON ” with an “ ERNK ” stamp on it was found in GPE Hayri PERSON 's office . A note addressed to “ Comrades PERSON and GPE ” were found in the possession of PERSON and PERSON . These notes were written by ORG members .", "A report in ORG possession was addressed to “ Mr President ” . A document was found in PERSON possession signed by ORG of GPE ” , regarding the work and activities of the ORG 's congress . CARDINAL receipts from the “ ERNK ” to be passed on to lawyers handling ORG cases were found in the possession of PERSON . Mr PERSON considered that the applicants ' denial of the authenticity of these documents was another mere defence tactic .", "The reference to NORP institutions in the indictment concerning Mr Elçi , Mr GPE and PERSON and PERSON , related to the ORG campaign to discredit GPE in the eyes of foreign Governments and to weaken it , in order to further their separatist objectives . In no way were these references to ORG , to whom individuals were entitled to complain , and the ORG had not put any obstacles in the applicants ' way .", "Mr PERSON was involved in the initial court proceedings , during which the applicants denied the charges against them and were released . Perhaps the fact that the cases were still pending [ in DATE ] was caused by the complexity of the case , involving a large number of suspects and numerous prison establishments .", "LAW . CARDINAL on the establishment and judicial practice of ORG gave ORG Prosecutors powers to investigate the offences within that court 's jurisdiction under LAW and CARDINAL of LAW . This overrode the special jurisdictional protection given to the prosecution of lawyers for ordinary criminal offences under LAW and CARDINAL of Law No . DATE on Advocates . This was also made explicit in DATE ( a ) , ( b ) and ( c ) of Law No . CARDINAL :", "“ Those who commit and who are accessories to the above mentioned crimes , regardless of their title and the nature of their official duty , must be prosecuted by ORG ” .", "In other words the procedures in the present case were carried out in accordance with ORG CARDINAL and CARDINAL of Law No . CARDINAL and Articles CARDINAL and CARDINAL of LAW .", "PERSON", "Mr PERSON was born in DATE and at the material time he was working at FAC . His principal task was to take the completed criminal files of detainees to ORG . He had had nothing to do with the applicants ' detention or interrogation . He had just taken their files to court .", "He knew of the CARDINAL lawyers but had only met PERSON and PERSON at the time , neither of whom had been blindfolded .", "If a colleague forgot to sign a document , he would sign it for him . He had signed CARDINAL such document in the case of PERSON , although he had not formulated its contents . He thought that the person who typed the statement had been ORG ; PERSON had been the interrogator . As far as he could remember , the witness had had PERSON notes and he had put the latter 's questions to Mr PERSON and had the replies typed up . PERSON was present when Mr PERSON signed his statement . He had chatted at length with PERSON and PERSON many times and Mr PERSON had lamented the fact that he and his wife had been used by “ them ” and duped .", "Mr PERSON then said that he had not been present when Mr PERSON signed his statement . He had no opinion on whether it was desirable or not to keep a suspect unaware of the identity of the interrogator . The suspect was not , however , blindfolded .", "Mr PERSON acknowledged that a signature seemingly like his was on a statement purportedly made by PERSON but not signed by her , but he did not remember exactly .", "Murat Kiricki", "Mr GPE was born in DATE and was an ORG for interrogation and investigation in the ORG gendarmerie . He had had a DATE 's training for that job .", "He had interrogated the CARDINAL lawyers . He thought that the detention of so many lawyers was normal although he could not recall a similar incident . He had been guided during the interrogations via the closed circuit television system by his superior officer , PERSON .", "First the lawyers asked why they had been detained , even though they must have been given the reasons earlier . They were informed that they were there to answer ORG allegations , and the interrogation started with the allegation that they had acted as couriers between prisons . Mr PERSON did not recall what had been the applicants ' initial reaction to the allegations .", "The interrogation was then interrupted and resumed later ( lapse of time unspecified ) , when they confessed to the courier charges . The change of attitude was probably due to reformulated questions which had been drawn up after the first interrogation had been analysed by his superiors .", "The lawyers were confronted with PERSON , who spoke first and to whom the detainees responded . They knew Mr Güven but disagreed about certain matters amongst themselves . However , there were no significant contradictions .", "Mr PERSON refused to comment on whether he should have further questioned those lawyers who refused to sign their statements . Then he explained that those had been DATE ; the applicants ' detention periods were coming to an end ; there was little time left ; he had taken statements from them ; he accepted any refusal not to sign and , anyway , ORG was to take another statement .", "Interrogations took place in the morning , after breakfast . The detainee would then have lunch and dinner . He would be taken to the toilet as needed and given water when it was requested . Interrogations varied in length from CARDINAL to TIME and could have been DATE .", "In the interrogation room spotlights were trained on the detainee so he could not see the interrogator , who sat at a desk . The closed circuit video system was on the back wall .", "The inability to see the interrogator was a security precaution and had a psychological effect on the detainee . He took notes of the interrogation . Later the detainee would be taken to an interview room where his statement would be taken by a transcriber in his presence . Blindfolds were not forbidden , but were not used . He was not in fear of his safety in the interview room when he could be seen by the detainee .", "Mr ORG could not recall why PERSON name appeared on PERSON PERSON 's statements . PERSON was CARDINAL of the CARDINAL or CARDINAL people who made up the interrogation team .", "He had not signed the record of PERSON statement and could not recall the reason for that . He had interrogated her . A colleague must have signed it when he saw that PERSON signature was missing .", "During interrogations , he communicated with the persons in the adjacent room with microphones and a closed circuit system .", "Hüseyin Gazi Ateş", "Mr Ateş was born in DATE and at the material time was working as a typist at the investigation and interrogation branch headquarters . He had typed the statements of the CARDINAL lawyers in the presence of the interrogator and each suspect . He typed what the suspect had said . He could not understand the question whether it was the interrogator who read out his notes , which the suspect would just confirm . He had never experienced a situation where the suspect disagreed with the interrogator about what the former had said on a previous occasion .", "Mr Ateş would sign what he had typed ; later the interrogator would sign the statement and take it to the suspect .", "There had been another typist at the time called PERSON who could have signed the statement of PERSON .", "Ercüment Dönmez", "Mr Dönmez was born in DATE and at the material time worked in the interrogation section of the anti - terror department at FAC headquarters .", "A warrant order was received by fax from the ORG gendarmerie to apprehend PERSON . It was stated that Mr Elçi had links with the ORG and was involved in that organisation 's activities , particularly as a courier . This information was conveyed to Mr Elçi when he was apprehended .", "On DATE he went with a team of CARDINAL or so people , accompanied by the team responsible for external security , to Mr PERSON 's business LOC . The people in that team included PERSON and perhaps PERSON .", "During the search of Mr PERSON 's office , which lasted TIME , many documents were seized which , for security reasons , could not be catalogued in detail on the spot . A first report was signed straight away indicating what had been seized . A subsequent confiscation report indicating the same documents would have been drawn up . The body search report was also drawn up at headquarters although it had been conducted when Mr Elçi was apprehended in TIME .", "The more detailed catalogue of the materials was made up at police headquarters and indicated that CARDINAL case files had been seized .", "The documents and Mr Elçi were handed over to the gendarmerie . Mr Dönmez could not explain why there was a faxed confiscation report in ORG file and not an original . Mr Dönmez knew nothing about the return of documents to Mr Elçi .", "The return of documents would be recorded in writing and signed by the owner . Documents containing no incriminating evidence would be returned in this way by the judicial authorities . CARDINAL of the seized files concerned the application to ORG PERSON .", "A large number of journals or newspapers were seized for examination as to their possible incriminating nature . He did not know the results of that examination .", "NORP The list of documents in the confiscation report was drawn up in Mr Elçi 's presence in the office of the head of department , PERSON . Mr ORG did not recall a document with an “ ERNK ” stamp on it . Mr Elçi was not held in the detention room as he was a well - known lawyer . He did not see Mr Elçi after he had been handed over to the gendarmes .", "PERSON", "Mr PERSON was born in DATE and at the material time was the head of the LOC anti - terror department of the Şırnak police headquarters .", "Mr Elçi was apprehended and his office searched following a fax from the ORG gendarmerie command headquarters in connection with alleged offences arising from the statement of ORG . However Mr PERSON did not recollect clearly whether PERSON name had been cited in that fax . It appears that Mr PERSON was told this . According to new human rights rules , when someone was apprehended he was told of the offence of which he was accused . ORG may have been informed verbally as a matter of urgency .", "Objects and documents that might have involved an offence would have been seized . If the location were unsuitable , the record would have been drawn up at headquarters , with the detainee 's consent .", "It was a sensitive matter to search a lawyer 's office . Mr PERSON did not know about confidential lawyer / client matters but , anyway , he did not examine the seized documents . He could not recall the signatures on various documents , but their identity could be established by the directorate general . All the documents and objects seized in Mr GPE 's office and home , including his CARDINAL case files , were handed over to the NORP district gendarmerie command . Mr PERSON did not know anything about their return .", "The document bearing the “ ERNK ” stamp was found in Mr PERSON 's diary which he had on his person . Mr PERSON 's signature appeared on the faxed confiscation report which mentioned this document . As a rule , documents were handed over with the individual , but perhaps this CARDINAL was overlooked at the time . The original would have been sent to court , if requested . If not , it would have been archived at the district police headquarters in the individual 's file . Mr PERSON had no explanation for the existence of CARDINAL confiscation reports , CARDINAL more detailed , but both with TIME CARDINALh.CARDINAL , DATE , on them .", "NORP The officers making the final delivery report must have forgotten to recover the significant “ ERNK ” document . Mr PERSON did not have an explanation for the discrepancy of CARDINAL case files seized in CARDINAL report and CARDINAL case files in another . Nor he could explain why the delivery report referred to the Commission case file of PERSON but not the confiscation report that he had signed .", "Mr PERSON had no knowledge of the systematic use of code - names by the ORG whereas the “ ERNK ” document referred directly to “ Comrade PERSON ” . Nor did he know why Mr Elçi would be carrying such a document on his person when the wave of arrests concerning lawyers had begun DATE . He denied having fabricated the document .", "Mr Elçi stayed in Mr PERSON 's office , drinking tea , while at the NORP police station , and would have been handed over around midday that same day , DATE , to the Cizre gendarmerie , as soon as the procedures had been completed .", "Mr PERSON denied that Mr Elçi had been put in a police cell and ill - treated . He did not know about any administrative investigation into this matter . He had been the subject of another investigation concerning a signature .", "PERSON", "Mr PERSON was born in DATE and was a team leader in the ORG gendarmerie at the material time . He had apprehended PERSON , ORG and PERSON .", "Mr Tur was apprehended at his home on TIME DATE , following an order from the provincial gendarmerie command in connection with the alleged NORP activities of the CARDINAL applicants . PERSON did not see the written order himself .", "NORP Accompanied by PERSON , PERSON entered PERSON house . A third member of the team , PERSON , waited outside in a vehicle . PERSON was told that , according to the provincial gendarmerie command , he was active in the ORG ; hence his apprehension had been requested . His house was searched , but nothing incriminating was found . He was taken to a doctor at ORG and then delivered to the gendarmerie .", "Nevzat Kaya was apprehended at his office on DATE . The office was searched but nothing incriminating was found . He was also taken to hospital before being handed over to the gendarmerie .", "Mr PERSON had no clear recollection of Mr GPE 's apprehension on DATE , other than the fact that the search had not revealed any incriminating evidence .", "None of the detainees was blindfolded .", "PERSON", "Mr PERSON was born in DATE and at the material time was a police officer in ORG .", "He was involved in the apprehension of PERSON on DATE around TIME Officials from the provincial gendarmerie command had called at police headquarters and requested that PERSON PERSON be apprehended and handed over to them .", "Mr PERSON went with CARDINAL or CARDINAL other officers to PERSON house , PERSON PERSON refused to open the door until the authenticity of the procedure had been confirmed . He required an acquaintance of his , Chief PERSON , to call by and identify Mr PERSON and his colleagues as police officers .", "Mr PERSON arrived TIME , during which time documents could have been destroyed , although no evidence of that was found .", "Mr PERSON told Mr PERSON that he was being investigated for suspected ORG connections and that he was to be taken into custody and handed over to the ORG gendarmes .", "Mr PERSON then allowed the team to enter and search his house . A record of seized documents was drawn up . He had no clear recollection of certain incriminating documents such as that bearing an “ ERNK ” stamp or another entitled ORG of GPE ” . All he remembered was gathering and recording documents and books with a political content , without examining them .", "Mr PERSON was not blindfolded at any stage .", "PERSON", "Mr PERSON was born in DATE and at the material time was the head of a team at the GPE Anti - Terror Department .", "He was involved in the apprehension of PERSON and PERSON .", "ORG A fax message was received from the ORG gendarmerie that these lawyers were wanted for assisting the ORG by acting as couriers for prisoners .", "On DATE Mr PERSON was accosted at ORG . He was told of the charges against him . He was taken to ORG where he was body searched . A team went to his house to conduct a search . A detention note was sent to ORG for a period of time to be authorised for his detention pending the arrival of the ORG gendarmes . DATE were authorised but , before the expiry of that period , he was handed over to the ORG gendarmes who apparently took him to ORG .", "Nothing was seized during the body or house searches .", "Mr PERSON knew Mr PERSON and apprehended him at ORG just before a hearing . Mr PERSON recalled nothing about PERSON .", "He met Mr PERSON some time after these events at ORG where they did not have any time to talk . All Mr PERSON said was that he had been detained in connection with some ORG confessor .", "The parties submitted various documents to the ORG and the ORG . The ORG also presented CARDINAL video cassettes . The ORG has had particular regard to the following material :", "The relevant parts of the CARDINAL statements of ORG ( a ORG confessor ) to the gendarmerie", "a ) statement of DATE", "Lawyers acted as couriers between the ORG and prisoners . They set up firms , as required by that organisation , e.g. the partnership of GPE with ORG , and PERSON with ORG . ORG was making similar efforts . PERSON acted as a courier .", "b ) statement of CARDINAL DATE", "Mr Güven stated that he had met a ORG guerrilla ( code name GPE ) at PERSON house . Mr PERSON was a courier between prisons and the Hakari – Şırnak and PERSON areas .", "At the ORG 's request , PERSON brought a flick knife into prison , and PERSON brought cyanide with the help of his client , the brother of PERSON . Mr GPE was part of a team of lawyers who brought ORG publications and books into prison .", "GPE , Meral PERSON , PERSON , ORG , PERSON and PERSON ( to a lesser extent ) also acted as couriers between the ORG E - type prison , as well as the GPE , Batman , PERSON and PERSON ( women only ) prisons . They carried , inter alia , notes , instructions and educational materials .", "Mr Tur had various ORG duties , including acting as a courier and transmitting the ORG 's decisions to the prison and prisoners ' statements recorded for the organisation . He was also part of the team bringing in ORG publications and books . He had the trust of the organisation and had official links with it .", "Mr and PERSON were ORG contacts for GPE and its NORP organisation , passing on information from prisons .", "Mr PERSON was in touch with the ORG 's centres in prison . PERSON transmitted notes with the help of other ORG couriers . He was also part of the team of lawyers bringing in ORG publications and books . He passed on messages to CARDINAL previous detainees in the ORG militia , called PERSON and GPE . He was the latter 's legal representative . They were caught in possession of ORG money amounting to CARDINAL CARDINAL .", "c ) First supplementary statement", "Mr Güven mentioned contact with a ORG member called PERSON . The latter was in charge of the incidents in Cizre during DATE .", "Hüsniye Ölmez was asked on behalf of the ORG to find a buyer for furniture left in the apartment of a detained ORG member , ORG , who had been jailed . She did not manage to do so .", "PERSON acted as a courier for the ORG , transmitting notes . For example , once he passed information to a person called GPE ( code name PERSON ) who was wanted by the security forces , and he also took notes to the militia members called PERSON and GPE .", "d ) Second supplementary statement", "Mr Güven alleged the involvement of ORG in the disposal of the furniture of a NORP detainee , with the initials PERSON", "Statement of ORG before ORG on DATE", "Mr Güven stated that he had become a ORG sympathiser after being influenced by ORG propaganda provided by a certain PERSON . He later met a ORG member ( code name - PERSON ) at the house of PERSON , and thereafter began working for the organisation as a courier , propaganda and activity organiser , recruiter and fund raiser . After his capture , he became the ORG 's political representative in FAC of FAC , where plans were made to kill prison warders . There were also plans concerning turned confessors . To this end , PERSON delivered cyanide to him and GPE Demırhan brought him a flick knife . However , these items were found in the confessors ' dormitory before they could be used .", "PERSON had conveyed messages to PERSON by way of notes placed in an address book . PERSON also took notes to Mr Güven 's friends . PERSON , PERSON , ORG , ORG and PERSON frequently carried organisational notes and educational materials to other prisons and the rural section of the organisation . PERSON did so less often . PERSON maintained relations between the prison and the rural section , conveying journals and conference reports . PERSON and PERSON and Mr PERSON maintained the co - ordination between the NORP and GPE organisations and between GPE and the prisons . PERSON acted as a courier and maintained contacts between the ORG and Gaziantep prisons .", "Various applicants complained of the excessive pressure being placed on members to become confessors by Prosecutor Tanju at ORG . PERSON and ORG stressed the matter more than others . They insinuated that he should be killed .", "Mr Güven also mentioned plans to kill the provincial gendarmerie command 's most senior officer .", "Evidence of Abdülhakim Güven before ORG on DATE", "At a ORG hearing on DATE , ORG appeared and the statement he had made to the gendarmerie was read out to him . He confirmed its correctness . [ Defence counsel for the applicants repudiated his statements as being a self - serving attempt to gain an acquittal and release . ]", "Mr Güven stated that he was the general representative of the ORG in prison and used to attend the interviews which defence lawyers had with their clients . These lawyers thus mostly saw ORG members .", "He denied that he had been tried as being a member of the ORG . An investigation against him was made , apparently concerning some written material , but a decision not to proceed was taken .", "Once the prison ORG members identified a lawyer as being “ patriotic ” , a decision was taken to contact him , as had been the case with PERSON .", "[ Defence counsel denounced these declarations as fictitious . ]", "Statements ( all subsequently repudiated by the applicants ) taken by officers of the ORG provincial gendarmerie command", "a ) PERSON", "( ORG statement which Mr PERSON was recorded as having refused to sign )", "Mr Elçi was recorded as stating that since DATE he had had a circle of friends who had relations with the ORG . Names of ORG members were cited . He maintained ORG activities in the urban area . He had become a ORG sympathiser in Cizre in DATE . He was apprehended in DATE and detained at the Diyarbakır E - type prison in DATE where he received ORG ideological and theoretical training . As a student he organised forums , boycotts , protests and propaganda slogans .", "Mr Elçi introduced PERSON to PERSON , whom he had known for a long time and who liaised with Mr PERSON 's brother . A ORG member ( PERSON ) was in charge of the town of Silopi , Cizre , and frequently went to Mr PERSON 's house . He had acted as a courier for Mr Güven once the latter was in prison , taking notes and the like , hidden in address books and diaries . He had helped a member , code name Firat , to transport sacks full of guns . Mr PERSON was said to have acknowledged his possession of an “ ERNK ” document and connections with PERSON , the leader of the ORG . He kept and disseminated propaganda publications .", "b ) İmam Şahin", "( Statement dated DATE and signed )", "Mr PERSON was recorded as stating that he had sympathised with the ORG , being influenced by its propaganda . He carried out various tasks assigned to him , such as liaising between members held in different prisons and helping members settle in GPE . He had connections with certain high - ranking members ( whom he named ) . His wife assisted the organisation by conveying correspondence and co - ordinating various activities in different prisons . He was the lawyer for the PERSON newspaper .", "Mr PERSON took part in the campaign to close FAC , having repeatedly been asked by “ them ” to put pressure on ORG authorities . He and his wife , PERSON and certain ORG lawyers analysed the situation . They pursued members ' cases and passed on any ORG security information they obtained to the ORG .", "He had direct contact with the NORP ORG organisation . He cited certain incidents and members ' names . He brought together other GPE lawyers who were deemed “ patriots ” . He selected potential members of ORG , which many lawyers joined , following the efforts of himself , his wife and PERSON .", "Amongst his duties , he was to collect , fabricate and spread propaganda about , for example , ill - treatment in police custody , allegations of extorted statements , the unlawful operation of courts , and unlawful arrests and detention ; and about the fact that the ORG was an organisation acting in self defence , not for terrorism , that villages were burned down and plundered and that ORG death “ squads ” were in operation , etc . The intention was to defame the ORG , and all kinds of lies were faxed to LOC on the instructions of the ORG . His wife was involved in this work , as were PERSON , PERSON , ORG , PERSON , ORG and PERSON , ORG , ORG , ORG , PERSON , PERSON , PERSON , PERSON and PERSON .", "Mr PERSON was also recorded having admitted that he acted as a courier out of the LOC , ORG and GPE prisons .", "c ) PERSON", "( Statement dated DATE and signed )", "Arzu NORP was recorded as stating that CARDINAL of her ORG duties was to belittle GPE in the international arena . This was done by fabricating applications to ORG , in which false allegations were made of torture being used against people , even lawyers .", "On CARDINAL occasion she believed she had transported documents and hand grenades for the ORG from GPE to GPE . CARDINAL people picked them up from her house . They stayed DATE and then were taken away by PERSON . CARDINAL of these people was a woman called GPE . Other lawyers working for the ORG were GPE . GPE , GPE , GPE , ORG , PERSON , PERSON , GPE and PERSON , and PERSON .", "d ) ORG", "( Statement dated DATE and signed )", "Mr Kaya was recorded as stating that he had met members of the ORG for the first time in DATE . A young man came to his office saying that he was a ORG member and the “ ERNK ” leader in ORG . PERSON was asked to help by acting as a NORP defence lawyer for a small fee . Mr Kaya was anyway charging low fees at that time . DATE he took a sealed envelope from this person to a client of his who was detained on remand at FAC . He acted as a courier between members , such as ORG , in different prisons . On CARDINAL occasion he brought many Tshirts , pyjamas , jackets and shirts for the ORG prisoners , together with pamphlets . He sent a fax on behalf of a representative called PERSON from ORG to ORG . He also smuggled audio - cassettes for this person . Almost all the lawyers were engaged in such activities , including all the applicants in the present case , whom he cited .", "e ) PERSON", "( Statement dated DATE and signed )", "Mr Tur was recorded as saying that he had been imprisoned in DATE when he underwent a high - level training course , after having made a “ statement of self - criticism ” . Before his imprisonment , he had had contacts with ORG leaders in LOC and the mountains , and had acted as a courier to such prisoners as ORG , using cigarette packets , address books , diaries and the like . He had harboured a dying ORG member at a relative 's house and , with the help of PERSON , delivered the body to a specific place in DATE or DATE . Mr PERSON cited various lawyers involved in similar activities , including all the applicants . Moreover PERSON together with someone else were said to have smuggled cyanide into the ORG E - type prison .", "f ) PERSON", "( Statement dated DATE and signed )", "Mr PERSON was recorded as stating that he had first met ORG members when visiting his father 's village . He had considered them “ liberators ” , having sympathised with them since he was a schoolboy . He was taken to meet other members and advised that , as a NORP , he should struggle against the “ fascist NORP State ” in the urban areas , defending NORP detainees for a small fee . Mr PERSON had mentioned that all the ORG lawyers working in ORG , including the applicants , were voluntarily working for the ORG .", "He informed these people that the commander of the ORG provincial gendarme command was anti - NORP , exerting extreme pressure on ORG supporters in the region , and that he should be assassinated .", "Thereafter he acted as a courier between prisons , constantly meeting ORG and other political representatives . He defended detained ORG militiamen for a small fee , spread propaganda and persuaded and threatened recalcitrant militiamen to return to the mountains on release .", "The defence lawyers ensured ORG coordination between prisons , smuggled out press - releases for the LOC newspaper , smuggled in poison , a knife , messages and prohibited publications , intimidated Public Prosecutors to ensure the aims of the ORG detainees , and disseminated false propaganda in LOC . He worked closely with PERSON on all of this . He was paid CARDINAL MONEY in travel expenses each time he carried a message between prisons . He himself had smuggled cyanide to ORG . He photocopied ORG files of ORG confessors and other captured members , giving the files to a specified ORG member , code named GPE . Other such incidents were described .", "He had obtained books and articles praising the ORG in order to learn more about the organisation , and took them into prison for training people there . He used to write reports on incidents in the region which he faxed to LAW associations in LOC with a view to blackening and discrediting GPE in its treatment of NORP .", "g ) Niyazi Çem", "( Statement dated DATE , which Mr PERSON was recorded as having refused to sign )", "Mr PERSON was recorded as stating that he sympathised with the NORP because of his NORP origins and had used his professional skills to assist it - acting as a courier and defence lawyer . He was engaged in disseminating propaganda to discredit ORG abroad . He conveyed oral instructions to ORG regarding the interruption of a review called “ Free people ” . He was given MONEY , as his activities for the ORG prevented him doing more legal work , and once transported QUANTITY of heroin from GPE to GPE . For DATE he also harboured an ailing ORG woman in his house and procured medicine for her .", "Mr PERSON was tipped off not to return to PERSON as ORG had become a confessor and might have been about to denounce him .", "h ) PERSON", "( Statement dated DATE and signed )", "Mr GPE was recorded as stating that he had sympathised with the ORG since DATE and had become more and more influenced by them when he acted as their defence lawyer and through his friend PERSON . He met PERSON who said he would provide him with cases , in return for which he had to act as a courier , as did other lawyers . He received occasional sums of MONEY in travel expenses for carrying messages between prisons . He helped PERSON transport the body of a dead ORG member .", "He had received an “ ERNK ” note about his courier activities TIME on his way home from the ORG court . He had forgotten to take it out of his pocket , so it was found on him when he was apprehended .", "i ) Meral PERSON", "( ORG statement , which PERSON claimed she had not signed , but her refusal was not recorded on the document )", "PERSON was recorded as stating that she had known ORG members for DATE , having become a sympathiser when she was a law student , it being an organisation engaged in an armed struggle with ORG for NORP freedom and independence .", "After marrying PERSON and setting up a law practice with him , they gradually became involved as ORG couriers between prisons . Lawyers who did not support the ORG could not plead cases before ORG . She spread propaganda belittling ORG . She and ORG tried to expose ORG to public scrutiny and she worked for ORG . She acted in solidarity with other applicants .", "The ORG had told her that she would receive ORG funding to open an office . She had a close friendship with ORG . She denounced to the ORG a particular prosecutor who intimidated and hindered her and ORG in their defence work , and had threatened them with arrest . There was talk of eliminating him . Discussions were held about defence tactics , as some accused ORG members were too passive before ORG , and the training of remand prisoners was raised .", "PERSON copied the court case files of confessors and showed them to the organisation . She and her husband converted ORG money into ORG . They took oral and written messages to the women 's section of ORG . They delivered other messages to PERSON . On CARDINAL occasion she received MONEY for travel expenses . She had had a ORG brochure in her bag when she was apprehended , which she had intended to photocopy and give to her friends .", "j ) PERSON", "( Statement dated DATE which , although signed , had been marked by PERSON with the letters “ ORG ” , to signify his refusal )", "Mr Beştaş was recorded as stating that he had become a ORG sympathiser at school due to the second - class status of NORP and the ORG goal of NORP freedom and independence . He cited several applicants who , together with him , defended ORG members on the instructions of the organisation . If one did not support the ORG , CARDINAL had ORG work . He acted as a ORG courier to and from prisons and gave several specific examples . Militiamen visited him at home to receive information about the cases of detained members . At ORG request , he conveyed a message hidden in an address book and a pen to ORG members and he brought messages back to Mr Güven . He changed MONEY into GPE , given to him regularly once DATE , which he handed over to a high - ranking ORG member . He accused many of the applicants of being ORG couriers too . On DATE of his apprehension he was carrying an “ ERNK ” sealed message which he had forgotten to take out of his pocket .", "k ) Vedat Erten", "( Statement dated DATE and signed )", "Mr Erten was recorded as stating that he had become a ORG sympathiser through the influence of propaganda disseminated when he was a student . It was a “ fashionable ” opinion to hold . He cited many of the applicants as having close relations with the ORG , advocating its policies and defending its interests . They all acted as prison couriers , meeting people like PERSON . Mr ORG was paid for his travel expenses . He gave specific examples of messages he had carried . As he had no work , he asked the ORG representatives to refer cases to him . When he was not paid , he received a minimum MONEY fee per client from the organisation .", "l ) PERSON", "( Statement dated DATE and signed )", "Mr PERSON was recorded as stating that he had commenced sympathising with the ORG at school where its publications were circulated . Once in legal practice , he visited clients in prison and met people like PERSON , who criticised him for providing insufficient support to the ORG . They threatened him with no work if he continued in this manner . As PERSON PERSON was extremely poor and the ORG was fighting for NORP independence , he accepted all their assignments . Mr Güven used him as a courier and paid him MONEY for travel expenses . He carried hidden notes in a diary and a pen . He cited a few examples . He smuggled a flick knife into prison and gave it to Mr Güven . Many of the applicants were also involved in courier work . They sent faxes to NORP human rights associations and denounced incidents as if they had been perpetrated by security forces , with the intention of blackening the reputation of ORG . He recalled a ORG forum where certain lawyers had received political , theoretical and military training for DATE . He felt no remorse for his ORG activities .", "m ) PERSON", "( Statement dated DATE and signed )", "Mr GPE was recorded as stating that he had been impressed at school with ORG exploits in DATE . When the army took power in DATE , the ORG 's activities were interrupted but as of DATE they resurfaced . He supported the ORG , taking part in demonstrations and the like . He frequently visited ORG which was spreading ORG propaganda and receiving ORG visitors . He worked closely with another lawyer , ORG , who had ORG connections . He accompanied PERSON Aslantaş to see clients in prison and was introduced to ORG . They took a message for him to the Gaziantep prison . They used an address book and a pen . They were to procure ORG publications for ORG which were to be sent through himself , PERSON or PERSON . Mention was also made of PERSON assistance . Messages were carried back from PERSON to Mr Güven . Mr Aslantaş and Mr GPE were given MONEY for travel expenses . He said that nearly all the ORG lawyers were engaged in ORG activities , and cited most of the applicants .", "He had been given CARDINAL “ ERNK ” receipts to transmit to lawyers from outside the area who had made ORG contributions . These were allegedly found on his person when he was apprehended ." ]

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

[ "5-1" ]

[]

[]

[]

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[ "The applicant was born in DATE and lives in GPE . In DATE the applicant was suffering from lung cancer . During his treatment he was infected with type B hepatitis .", "On DATE the applicant lodged a claim for compensation against the hospital . He was represented by counsel , GPE On DATE ORG awarded the applicant compensation in the amount of PERCENT of his claim . The applicant appealed .", "On DATE the court issued a supplementary judgment declaring that in view of the reform of the health care system ORG was liable jointly with the hospital for damage suffered by the applicant .", "By a judgment of CARDINAL DATE ORG held that the amount of compensation did not correspond to the damage which the applicant had suffered . Nevertheless , it dismissed the appeal . It pointed to the fact that the applicant had wrongly named one of the defendants , namely the hospital .", "Subsequently , the applicant asked GPE on several occasions , including by letter , to take further steps and to lodge another appeal . He also contacted the local Bar , complaining about the lawyer 's conduct . Finally , he authorised GPE to represent him in the cassation proceedings .", "The cassation appeal was lodged on DATE .", "On DATE ORG dismissed it , partly because the lawyer had wrongly challenged the first - instance court judgment instead of the judgment of the appellate court and partly because the statement of appeal had not fulfilled the applicable formal requirements .", "NORP The decision was served on GPE on DATE but he failed to inform the applicant of this . As a result , the applicant only learned about the outcome of the proceedings on DATE when he contacted the registry of ORG directly .", "On DATE the applicant terminated his contract with GPE", "On DATE the applicant lodged a claim for compensation against GPE with ORG . In a judgment delivered on DATE ORG awarded compensation for non - pecuniary damage sustained by the applicant as a result of ORG 's failure to represent his interests in the proceedings diligently .", "On DATE the applicant lodged an appeal against this judgment which was dismissed by ORG on DATE . The decision was served on the applicant on DATE .", "On DATE the applicant requested legal aid for the purposes of preparing a cassation appeal . On DATE the ORG allowed his request and requested ORG to assign a lawyer to the case . On DATE the Bar assigned the case to GPE On an unspecified date DATE TIME was served with a copy of the second - instance judgment .", "On DATE the applicant was served with a legal opinion prepared by PERSON and dated DATE by which PERSON explained why he had found no grounds to prepare a cassation appeal .", "On DATE the applicant complained to ORG about the refusal .", "As a result of this intervention with ORG , on DATE the ORG requested PERSON to prepare the cassation appeal within DATE . In a written opinion of DATE PERSON maintained his view that there were no grounds for a cassation appeal in this case .", "On DATE the applicant asked the local Bar to assign another legalaid lawyer to the case .", "The Bar replied on DATE that , having regard to the opinion expressed by the first lawyer , it saw no grounds for assigning new counsel to the applicant . It also reminded him that pursuant to the case - law of ORG it was permissible for a legalaid lawyer to refuse to prepare a cassation appeal if he or she considered that it offered no prospects of success .", "On DATE the applicant asked for retrospective leave to lodge a cassation appeal out of time . On DATE that request was rejected .", "Pursuant to LAW , a court should give all necessary procedural instructions to a party acting without a lawyer and , in particular , should indicate the consequences of that party 's acts or failures to act .", "Article CARDINAL § CARDINAL of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he or she submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family 's standard of living .", "Pursuant to Article CARDINAL of the Code , persons exempted from court fees may request that legal aid be granted to them . The court will then request the relevant ORG or ORG to assign an advocate or a legal adviser to the claimant 's case .", "At the material time a party to civil proceedings could lodge a cassation appeal with ORG against a final judicial decision of a secondinstance court which terminated the proceedings .", "Under Article CARDINAL § CARDINAL of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within DATE from the date on which the decision with its written grounds was served on the party concerned . Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected .", "Article CARDINAL of the Code as applicable at that time listed the grounds on which a cassation appeal could be lodged . It read as follows :", "“ The cassation appeal may be based on the following grounds :", "CARDINAL ) a breach of substantive law by its erroneous interpretation or wrongful application ;", "CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”", "Article CARDINAL specified the requirements of a cassation appeal . It read in its relevant part :", "“ § CARDINAL . A cassation appeal should include :", "CARDINAL ) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only ;", "CARDINAL ) NORP an indication of the grounds for the cassation appeal ;", "CARDINAL ) NORP arguments showing that its examination would be justified ;", "CARDINAL ) a motion to have the decision under appeal quashed or amended , specifying also the scope of the motion . ”", "Article CARDINAL read as follows :", "“ A second - instance court shall reject in a hearing held in camera a cassation appeal lodged after a prescribed time - limit or which is inadmissible on other grounds ( ... ) . ”", "The reasons justifying the examination of a cassation appeal by ORG could be inferred a contrario from Article CARDINAL of LAW which , as applicable at that time , read , in its relevant part :", "“ CARDINAL . ORG may refuse to entertain the cassation appeal , if :", "i ) there is no appearance of any significant legal issue in the case ,", "ii ) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts ' case law ,", "iii ) the appeal is manifestly ill - founded .", "Paragraph CARDINAL shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law . ”", "Article CARDINAL of LAW of DATE , as amended , reads , insofar as relevant :", "“ CARDINAL . The Bar is established to provide legal assistance , co - operate in protecting a person 's rights and freedoms as well as to formulate and apply the law .", "The Bar is organised as a self - governing association .", "An advocate whilst executing his / her professional duties is accountable only to the law . ”", "Article CARDINAL of the LAW provides as follows :", "“ The general tasks of the professional ORG are as follows :", "CARDINAL ) creation of conditions for the statutory performance of the Bar 's tasks ,", "CARDINAL ) representation of the LOC and protection of its rights ,", "CARDINAL ) supervision over the observance of the rules regulating the practice of the profession ,", "CARDINAL ) development of professional skills and training of advocates ,", "CARDINAL ) determination and promotion of professional ethics and ensuring their observance ,", "CARDINAL ) management ( ... ) of the Bar 's assets . ”", "Article CARDINAL of the LAW reads :", "“ CARDINAL . An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party . Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local ORG , and in situations where time is of the essence , by the PERSON of that ORG .", "In cases where legal assistance is granted on the basis of the legal regulations concerning legal aid , only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance . ”", "Under LAW of the LAW , an advocate shall provide legalaid services in the jurisdiction of a court where he or she has their office .", "Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by ORG . They may be held accountable for professional misconduct or a breach of ethical principles in proceedings before the bar disciplinary court .", "Under LAW adopted by ORG on DATE , when an advocate , either privately hired by the client or appointed under the legalaid scheme , considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view , the lawyer shall give notice of termination of the power of attorney , terminate the representation , or notify the refusal to the body which appointed him or her .", "In DATE ORG issued a resolution in reply to a legal question whether a legalaid lawyer could refuse to lodge a cassation appeal . It replied to the question in the positive .", "The court observed that issues involved in the grant of legal aid concerned not only the proper administration of justice , but also touched on human rights , and the right of access to a court in particular . Nevertheless , there was no comprehensive and coherent regulation of legal aid under NORP law .", "The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism . However , a certain conceptual confusion was to be noted in the provisions governing legal aid as a whole , mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure . In particular , the scope of legalaid lawyers ' obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure . This was so partly because the essential body of law concerning civil procedure had been enacted in DATE , while the provisions on mandatory legal representation for the purposes of a cassation appeal had been introduced in DATE , when this new kind of appeal had been created .", "As a result , the scope of legalaid lawyers ' obligations to provide a party to the proceedings with “ legal aid ” in civil proceedings was unclear . In particular , the provisions on lawyers ' legalaid obligations in connection with cassation proceedings before ORG lacked clarity . The court noted that the judicial practice regarding the application of the relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case - law of the NORP courts .", "The court observed that the issue of possible conflict between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law . It further noted that the notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client 's wishes . The role of a legalaid lawyer had rather to be understood as obliging him or her to provide legal advice to the party , including as to the prospects of success offered by a cassation appeal against a given judgment .", "The constitutional role of ORG , the highest judicial authority , was also an argument in favour of the conclusion that a legalaid lawyer was not compelled by the will of the party to have a cassation appeal lodged if such an appeal was bound to fail . In case of a disagreement between the party and the lawyer , it was open to the party to complain to the local Bar under LAW . The Bar could then appoint a new lawyer who could lodge a cassation appeal , requesting at the same time to be granted leave to appeal out of time under LAW . It was true that the practice of ORG was not coherent in that in some cases it had rejected such requests and in others it had accepted them . However , it did not prevent the parties from having recourse to this course of action .", "Pursuant to LAW , a party to proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed time - limit ; this measure shall be performed simultaneously with lodging the request .", "Article CARDINAL of the Code of Civil Procedure reads , in so far as relevant :", "“ If a legal representative ... has been appointed in a case , the court correspondence shall be served on [ him or her ] .", "However , in a number of decisions the civil courts have held that the running of the time - limit for lodging a cassation appeal is not affected in any way by a request for legal aid submitted by a hitherto non - represented party and its subsequent grant or refusal . That time - limit starts to run on DATE when the party was served with the judgment of the appellate court together with its written grounds , also where the request for legal aid has subsequently been granted ( ORG decisions of DATE , II CZ CARDINAL/CARDINAL ; DATE , I ORG CARDINAL/CARDINAL ; DATE , ORG CARDINAL/CARDINAL ; CARDINAL DATE , II UKN CARDINAL/CARDINAL ; CARDINAL DATE , I CKN CARDINAL/CARDINAL ; DATE ; II UZ CARDINAL/CARDINAL ; DATE , I ORG CARDINAL/CARDINAL ; DATE , II UZ CARDINAL/CARDINAL ; DATE , ORG , DATE , I ORG CARDINAL/CARDINAL ) .", "ORG has repeatedly held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the timelimit could be admitted for examination ( DATE , II CZ CARDINAL ; CARDINAL DATE , II UZ CARDINAL/CARDINAL ) . In a further series of decisions ORG considered that it would be unfair for the legally - aided party to be penalised for the fact that legalaid applications could not be processed quickly enough to make it possible for a cassation appeal to be lodged within DATE counted from DATE of service of the judgment on the party . The parties waiting for legal - aid services can not be held at fault for shortcomings in the system . A party who was obliged to have recourse to legal aid should not be put in a worse situation than that of a person who did not seek it . A request to appeal out of time should therefore be submitted within DATE from the date on which the lawyer could obtain effective access to the case file or had an effective possibility of drafting an appeal ( DATE , II UZ CARDINAL ; DATE , I ORG CARDINAL/CARDINAL ) , or from the date when the lawyer was informed that he had been assigned to the case by ORG DATE , PERSON ; CARDINAL DATE , II UZ DATE ; CARDINAL DATE , PERSON ;", "In a resolution adopted by a bench of CARDINAL judges of ORG on DATE ( III CZP CARDINAL/CARDINAL ) that court acknowledged that there had been discrepancies in the manner in which the beginning of the DATE time limit for submitting an application for leave to appeal out of time by legally - assisted parties had been determined . The court was of the view that applications for leave served the purpose of making access to ORG for legally - aided parties genuine and effective . Hence , the beginning of the time - limit could not be determined in a mechanical manner in all cases . The courts should instead examine the circumstances of individual cases as a whole and determine that date bearing in mind the genuine possibility for a lawyer to examine the case and prepare a cassation appeal ." ]

[ "6" ]

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[ "The first applicant was born in DATE and lives in GPE . The second applicant was born in DATE and lives in LOC . The first applicant is the wife of Mr PERSON and the second applicant is the sister of Mr Erdinç Arslan . PERSON and PERSON were killed by police officers on DATE .", "On DATE at TIME police officers from the antiterrorist and special forces of GPE police headquarters raided a block of flats where PERSON , aged DATE , and PERSON , aged DATE , had been living . The following day at TIME a police report ( olay - yakalama - ev arama - zapt etme - görgü tespit tutanağı ) was drawn up and signed by thirtysix police officers .", "According to this report , at TIME on CARDINAL DATE GPE police headquarters received an anonymous telephone call . The caller stated that several persons had been acting suspiciously and carrying bags and suitcases into one of the flats on the third floor of a building .", "A total of QUANTITY police officers arrived outside the block of flats at TIME and secured the surrounding area . CARDINAL officers went up to the landing on the third floor , where there were CARDINAL doors . There was no lighting in the building and it was dark . As the police officers did not know which flat to enter , they decided to raid all of them at the same time . Immediately thereafter , shots were fired from CARDINAL of the flats but the police officers were unable to determine from which of the CARDINAL flats the shots were coming .", "At that moment CARDINAL of the doors was opened by a man carrying a gun who , upon seeing the police officers , closed the door immediately and locked it . The officers told this person that they were police officers and ordered him to surrender . As he did not reply , the police officers broke the door and , without entering the flat which was also in the dark , started firing towards the ceiling and the upper parts of the walls .", "At around that time the police officers realised that the gunfire had in fact been coming from the flat on the opposite side of the landing and ordered the persons in that flat to surrender . However , the occupants chanted slogans and continued shooting . The officers then broke down their door , entered the flat DATE which was also in the dark – and returned fire . The occupants of the flat then retreated to a room and the police officers intensified their fire towards that room . When the officers realised that no more gunfire was coming from the occupants of the room they stopped firing . In this room the police officers captured a certain PERSON alive , and found Mr PERSON body . Upon discovering that there were explosives in the flat the police officers left the building for their own safety and notified bomb disposal experts , who subsequently arrived and defused the explosives .", "Meanwhile , a number of other officers entered the first flat and found the second applicant and her DATE son as well as the body of PERSON .", "NORP The same evening the GPE prosecutor arrived at the scene of the incident . In his presence the police officers searched PERSON flat and found a PERSON machine gun numbered SGCARDINAL , a PERSON firearm , empty cartridges and bullets . The police officers found a ORG firearm numbered DATE in PERSON flat . They also recovered empty PERSON cartridges and bullets by the entrance to PERSON flat .", "On DATE at TIME the ORG prosecutor drew up a report from which it appears that he arrived at the scene of the incident after having received a telephone call from the security forces . The prosecutor first conducted an inspection in PERSON flat and observed the presence of a PERSON machine gun , another firearm , several cartridges , bullets , empty cartridges , explosives and materials for making explosives . In PERSON flat the prosecutor noted the presence of the ORG firearm and the empty PERSON cartridges and bullets . The prosecutor further observed and recorded in his report the existence of numerous bullet marks on the walls and ceilings in both flats . The prosecutor stated in the report that a doctor from ORG had examined the corpses and had observed that there were bullet entry wounds to PERSON head , abdomen and lumbar regions . As regards PERSON , the doctor had noted bullet entry wounds on his head and hands . The doctor had concluded that classic autopsies were required in order to establish the cause of death . The corpses were then sent to the morgue of ORG .", "The same day autopsies were carried out on the bodies of the CARDINAL deceased men . It appears from the autopsy reports that PERSON was shot in the head and hands . A bullet entry wound was observed on his left temple . Another bullet entry wound was observed on the back of his right hand . The third bullet had entered his left hand through the third finger . Bullet exit wounds were observed in the occipital region , on the right palm and on the left wrist . The experts were unable to determine the number of bullets which PERSON had received to his head . They maintained that all the shots had been fired at long range . PERSON death was stated to have been caused by a fractured skull , laceration of the brain and a cerebral haemorrhage as a result of firearms injuries .", "The report concerning PERSON revealed that he had been shot in the head and chest . CARDINAL bullet entry wounds were observed in the left orbital region . CARDINAL bullet entry wound was found on the left side of the chest . The bullet exit wounds were found on the left parietal region and the right side of the lumbar region . The forensic experts concluded that the bullets to PERSON head had been fired at long range , but they were unable to determine the distance because the deceased 's clothing had been covering his body .", "Also on DATE a police chief informed the ORG prosecutor that the fingerprints taken from “ the CARDINAL dead terrorists ” did not match any fingerprints in their archives .", "On DATE PERSON , who survived the shooting , made a statement before the PERSON prosecutor regarding the incident . He maintained , inter alia , that he and PERSON had rented the flat DATE before the incident and had been manufacturing explosives there . On DATE of the incident , when he had heard footsteps on the roof , he had approached the entrance to the flat and opened fire on the police officers who were outside the flat . The police officers had then returned fire and shot PERSON but he had not seen PERSON firing the PERSON machine rifle .", "On DATE the prosecutor questioned the first applicant , who maintained , inter alia , that her husband had not had a firearm and that he had actually been on the telephone when the police officers had suddenly stormed their flat without any prior warning , opened fire and shot her husband . She had then hidden in the flat with her son . After her husband had been hit , the officers had continued firing into the flat . The officers had not informed them that they were police officers . The first applicant also gave a description of the officer who shot her husband . She stated that she had heard the officers unsuccessfully ordering the occupants of the other flat to surrender . She maintained that the shooting had continued for a while and , when it stopped , CARDINAL uniformed men had entered her flat and taken her and her son outside . Before she left the flat she had looked at her husband 's body and she had not seen any weapons next to him . She requested that the persons responsible for killing her husband be punished .", "On DATE the prosecutor questioned the police officers who had participated in the operation . The officers stated , inter alia , that they had been surprised on their arrival on the third floor by the fact that there were CARDINAL doors , CARDINAL of which turned out to be the door to a storeroom . While they were reflecting on how to proceed , shooting had come from CARDINAL of the flats . As they could not establish from which direction the gunfire was coming , they had decided to raid all the flats . At that moment a man with a pistol in his hand had briefly emerged from CARDINAL of the doors and then gone back inside . The officers had then broken the door to that flat ( occupied by PERSON ) and fired their weapons at random in order to warn the occupants . They had then realised that the gunfire had actually come from the flat on the other side of the landing ( Erdinç PERSON 's flat ) and had called for assistance from ORG .", "Officers PERSON , PERSON and PERSON from the anti - terrorist branch stated that , together with the officers from the special forces , officer PERSON and officer PERSON had broken the door to Mr PERSON 's flat and opened fire . The occupants of the flat who had been firing at them had then retreated to a room and continued to fire from there . According to officer Bülbül , the armed clash had continued for TIME , whereas officer PERSON was of the opinion that it had lasted for TIME . After the operation , officers PERSON and PERSON had seen a PERSON rifle , a pistol , a cartridge and explosives in the room . Officer PERSON added that he had used a PERSON rifle in the operation .", "Officers PERSON and ORG from the special forces told the prosecutor that when they and their team arrived outside the building they had heard gunfire and had gone up to the third floor where they had met with officers from the anti - terrorist branch . No fire had been opened from Mr PERSON 's flat before they stormed the flat . After having entered the flat they had asked the occupants of the flat to surrender but CARDINAL shot had been fired in response from CARDINAL of the rooms , followed by an object which had been thrown towards them from the same room and which they had considered at the time to be a bomb . They and another colleague from the anti - terrorist branch had then opened fire towards the room ; they had used MCARDINAL rifles and the remaining officer had used a PERSON rifle . Officer PERSON stated that he was sure that only a total of CARDINAL officers – including himself – had opened fire . The firing had continued for TIME . After the firing had ceased , they had seen a pistol in the room but no bombs or any other rifles .", "On DATE ORG questioned the police officers . Officers GPE and ORG stated that on their arrival on the third floor landing gunfire had been coming from inside Mr Erdinç 's flat . ORG rejected the prosecutor 's request to order the pre - trial detention of CARDINAL of the police officers , namely PERSON , PERSON , PERSON , PERSON , PERSON and ORG . The following day the prosecutor successfully lodged an objection against ORG decision .", "On DATE the first applicant identified police officer PERSON as the person who had shot her husband PERSON .", "DATE the QUANTITY police officers being held in pre - trial detention lodged an objection against their detention . The following day ORG ordered the release of CARDINAL of them and rejected the objection lodged by Officer PERSON .", "On DATE the prosecutor heard evidence from the second applicant , who contended that on DATE of the incident at TIME . her brother PERSON had telephoned her . She had heard him shouting “ Let me go ! Leave me ! ” . She maintained that she had heard noises on the telephone but not gunfire .", "On DATE the ORG prosecutor filed a bill of indictment with ORG . In the indictment the prosecutor stated that , prior to the operation , the security forces had failed to conduct an investigation or gather information about the suspected persons and had thus failed to plan the operation in a proper manner . The prosecutor noted that officers PERSON , PERSON , PERSON and PERSON had broken down the door to PERSON GPE 's flat and entered there without issuing a warning . The prosecutor considered that , although the officers alleged that they had not directly aimed at PERSON , the wounds to PERSON head could not have been the result of random firing . As for the firearm found next to PERSON body , the prosecutor stated that his office had been unable to determine how the firearm had come to be there ; no cartridges or bullets belonging to that firearm had been found at the scene of the incident .", "With regard to the killing of PERSON , the prosecutor observed in his indictment that the wound to PERSON head could not have been the result of warning shots . Noting that the deceased had only fired once , the prosecutor considered that officers PERSON , PERSON and ORG had exceeded the limits of self - defence by killing him .", "The prosecutor charged PERSON , PERSON and PERSON with the offence of murder . PERSON was charged with murder and with exceeding the limits of legitimate self - defence . Finally , PERSON and ORG were charged with the offence of causing death by exceeding the limits of legitimate self - defence .", "On DATE ORG ( hereinafter “ the trial court ” ) held the first hearing on the merits of the case . On DATE the applicants and the deceased men 's other relatives joined the proceedings as interveners .", "On DATE the representative for the interveners requested the trial court to order an investigation into the accused police officers ' superiors who had planned and controlled the operation . The trial court dismissed this request , holding that the intervening parties should apply to the prosecutor 's office .", "On DATE the trial court had regard to the time spent by Officer PERSON in detention and also noted that the collection of the evidence was almost complete . Noting that Mr PERSON had a permanent residence , the trial court ordered his release from prison .", "During the subsequent hearings the trial court heard evidence from the defendants , the applicants , the intervening parties , the police officers who participated in the operation , the deceased persons ' neighbours and PERSON . Mr PERSON changed his previous statement and maintained that Erdinç PERSON had in fact fired the PERSON . The trial court also conducted an on - site inspection of the CARDINAL flats and ordered experts to take photographs of the scene of the incident and to draw up a sketch map .", "During the on - site inspection on DATE , the trial court ordered an expert to draw up a report in order to determine whether the shots had been fired at random and to establish the accuracy of the police officers ' account that they had not been able to establish the source of the firing at the beginning of the operation .", "On DATE the expert submitted his report to the trial court . He concluded that the police officers had fired their guns at random . The expert also considered that it was probable that the police officers had failed to determine the direction of the shots fired from the PERSON because shots from such a powerful weapon would have caused an echo in the building .", "On DATE the trial court rendered its judgment . It held that there was no evidence in the case file to prove that there had been a premeditated plan to kill the CARDINAL persons or that the firearms found at the scene of the incident had been planted there by the police officers who had participated in the operation .", "With regard to the killing of PERSON , the trial court rejected the first applicant 's allegation that the lights had been on in the flat at the time of the incident and that her husband had not had a firearm . The trial court considered it probable that PERSON had had a firearm in his hand as there were armed men in the building . The trial court further noted that the police officers had planned to render PERSON harmless in order to be able to arrest him . It also observed that PERSON had not fired his gun .", "The trial court observed that the police officers had fired a total of CARDINAL bullets and that PERSON had been shot in the head , whereas the police officers should have aimed at other parts of his body , such as his legs and feet , in order to avoid the risk to his life . The trial court concluded that PERSON , PERSON , PERSON and PERSON had exceeded the limits of their powers in resorting to force and had thus caused PERSON death . However , the trial court could not determine which officer had actually killed PERSON and it thus reduced the QUANTITY police officers ' sentences to DATE , before further reducing them to DATE and then suspending them altogether .", "As to the killing of PERSON , the trial court noted at the outset that the security forces had received information that the deceased and PERSON had been making explosives in their flat with a view to carrying out bomb attacks on the provincial offices of the CARDINAL political parties which formed ORG at the time . The trial court observed that , according to the expert report of DATE , PERSON and PERSON hand swabs revealed traces of antimony . It further noted that an exchange of gunfire had begun between the police officers who had secured the area outside the building and PERSON and PERSON , who had been in the flat . It recorded that CARDINAL bullets had been fired from the PERSON and QUANTITY from the NORP firearm ; both these weapons had been found in PERSON flat . The court noted that a bullet had been fired from the room in the direction of the police officers who had been on the other side of the door .", "The trial court considered that the police officers , who had been facing CARDINAL persons armed with weapons and bombs in a confined place , could not have been expected to fire at non - life - threatening parts of Mr PERSON 's body . It therefore held that PERSON , PERSON and ORG had remained within the limits of legitimate self - defence . It concluded that there were no grounds for imposing any punishment on those officers for the killing of PERSON .", "CARDINAL", "On DATE ORG upheld the judgment of ORG . On DATE ORG decision was deposited with the registry of ORG .", "The relevant domestic law and practice are set out in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) ." ]

[ "2" ]

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[ "The applicant , Mr PERSON , was a NORP national who was born in DATE and lived in GPE . In DATE the applicant died . By a letter of CARDINAL DATE the late applicant ’s wife PERSON and his children Mr PERSON and PERSON informed the Court that they wished to pursue the application in his stead . The applicant is represented before the Court by PERSON E. Ľalíková , a lawyer practising in GPE . The respondent Government are represented by PERSON , their Agent .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant ’s family owned real estate located in GPE which comprised a house and the land around it .", "In DATE CARDINAL contracts were made relating to the transfer of the property to the ORG . The first of these contracts was concluded on DATE and the second at some unspecified point in DATE . The existence and validity of these contracts were later in dispute ( see below ) .", "The ORG subsequently took over the property and , since then , it has been used by a college of agriculture in GPE . The title to the property was formally vested in a special legal entity ( školský majetok or , later , školské hospodárstvo ) which was attached to the college .", "On DATE the applicant and CARDINAL of his relatives , who were all jointly represented by a lawyer , brought a civil action against the above entity which possessed the property and against ORG ( školská správa ) in LOC súd ) . They originally sought an order for possession of the house , but later extended the action by also seeking a ruling declaring that the defendants were not bona fides possessors of the property .", "On DATE ORG dismissed the action but , on the plaintiffs’ appeal , ORG ( PERSON súd ) quashed the judgment on DATE .", "On DATE ORG found in favour of the plaintiffs but , on the GPE appeal , ORG overturned the judgment and dismissed the action on DATE .", "The plaintiffs appealed on points of law to ORG .", "On DATE ORG quashed the judgment of DATE and remitted the case to ORG for reexamination of the GPE appeal against the judgment of DATE .", "On DATE ORG examined the GPE appeal against the judgment of DATE afresh . It again reversed the latter judgment and dismissed the action . ORG examined complex documentary and other evidence , including the pleadings of the parties . It found that the contract of DATE had been validly concluded and approved by the competent authorities . It had lawfully conveyed the house in question to the ORG . As a consequence , under the laws which applied at the time , the title of the applicant ’s family to the land underneath the house had been automatically extinguished . The applicant and the other plaintiffs had therefore no legal title to the property and , consequently , no right of action in the case .", "The plaintiffs again appealed on points of law . They contested ORG factual conclusion as to the existence of the contract of DATE . They maintained that the judgment was not properly reasoned , that the facts had not been established adequately and that the court ’s legal assessment of the case was flawed .", "On DATE ORG dismissed the appeal . Following the applicant ’s death , it dealt in his stead with his surviving wife and children , being his heirs . ORG found that the facts of the case had been established adequately , the reasons given by ORG were comprehensive and convincing and its conclusion was correct .", "On DATE ORG issued an order for costs against the plaintiffs .", "The wife and children of the applicant , who were represented by a lawyer , challenged ORG judgment by a complaint to ORG under LAW . They complained that the judgment was onesided , unfair and wrong , contrary to LAW .", "On DATE ORG declared the complaint inadmissible as being manifestly ill - founded . It found that ORG had adequately examined the plaintiffs’ arguments , its findings were not manifestly arbitrary or wrong and its conclusions had been adequately reasoned ." ]

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[ "The applicant was born in DATE and lives in Wydminy .", "On DATE the applicant was arrested on suspicion of having committed CARDINAL burglaries . On DATE ORG ( Sąd Rejonowy ) ordered that the applicant be remanded in custody until DATE . It found that there were reasonable grounds for believing that the applicant had committed the offences in question and that he would obstruct the proper course of the proceedings . The applicant ’s detention was subsequently prolonged by ORG on unspecified dates . On DATE the bill of indictment was filed with the court .", "On DATE ORG convicted the applicant of CARDINAL counts of burglary and sentenced him to CARDINAL years’ imprisonment . The applicant appealed against that judgment .", "On DATE ORG ( PERSON ) quashed the first - instance judgment and ordered a retrial . The applicant was released on DATE .", "On DATE ORG convicted the applicant of CARDINAL counts of burglary and sentenced him to CARDINAL years’ imprisonment .", "On an unspecified date in DATE the applicant was charged with homicide . On DATE ORG ordered that the applicant be detained for DATE in view of the reasonable suspicion that he had committed the offence at issue . On DATE ORG ordered the applicant ’s release . On DATE the criminal proceedings against the applicant were discontinued .", "On DATE the applicant was arrested on suspicion of burglary . On DATE ORG ordered his detention on remand until DATE . It found that there was a reasonable suspicion that the applicant had committed burglary , having regard to the evidence obtained in the investigation . It also relied on the severity of the likely sentence given the fact that the applicant was a habitual offender . Lastly , it held that there was a risk that the applicant would tamper with evidence .", "On DATE ORG ordered that the applicant be remanded in custody until DATE . On DATE the applicant ’s detention was further prolonged until DATE . The court relied on the same grounds as given in the original detention order .", "NORP In DATE the bill of indictment was filed with ORG . The applicant was charged with CARDINAL counts of burglary and intimidation of a witness .", "On DATE the ORG prolonged the applicant ’s detention until DATE . His detention was further prolonged on DATE . On DATE the applicant was released .", "On DATE ORG convicted the applicant as charged and sentenced him to DATE and CARDINAL months’ imprisonment .", "The following of the applicant ’s letters to the ORG bear a stamp “ Judge ” ( GPE ) and an illegible signature :", "letter dated DATE received by ORG DATE . It appears that the envelope in which that letter was sent had been cut open and subsequently resealed with adhesive tape ;", "letter dated DATE received by ORG on DATE . That letter also bears a stamp “ ORG . Received DATE ” ( PERSON . FAC ) and an illegible signature . The envelope in which the letter was sent bears a stamp “ FAC . Received DATE ” ( PERSON . PERSON ) . According to the postal stamp , the letter was posted on DATE ;", "letter dated DATE received by ORG on DATE . It appears that the envelope in which that letter was sent had been cut open and subsequently resealed with adhesive tape ;", "letter dated DATE received by ORG on DATE ;", "letter dated DATE received by ORG on DATE . The envelope in which that letter was sent bears a stamp “ FAC . Received DATE ” ( PERSON . PERSON ) . According to the postal stamp , the letter was posted on DATE . It appears that the envelope in which that letter was sent had been cut open and subsequently resealed with adhesive tape ;", "letter dated DATE received by ORG on DATE .", "Most of the envelopes in which those letters were sent , except for the letters dated DATE and DATE , bear a hand - written note “ ORG ” ( D[istrict ] C[ourt ] GPE ) .", "Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) which entered into force on DATE .", "The relevant part of Article CARDINAL § CARDINAL of the LAW provides as follows :", "“ Convicted persons ( ... ) have a right to lodge complaints with institutions established by international treaties ratified by GPE concerning the protection of human rights . Correspondence in those cases ( ... ) shall be sent to the addressee without delay and shall not be censored . ”", "Article CARDINAL § CARDINAL reads as follows :", "“ Unless exceptions are provided for in the present LAW , a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison . No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings , to maintain order and security in a remand centre and to prevent demoralisation of detainees . ”", "Article CARDINAL § CARDINAL reads , in so far as relevant , as follows :", "“ ( ... ) detainee ’s correspondence shall be censored by [ the authority at whose disposal he remains ] , unless the authority decides otherwise . ”", "Article CARDINAL § CARDINAL reads as follows :", "“ The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter . ”", "On DATE the Rules of Detention on Remand ( ORG w sprawie regulaminu wykonywania tymczasowego aresztowania ) entered into force .", "§ CARDINAL of the ORG provides :", "“ A detainee ’s correspondence , including correspondence with the international institutions for the protection of human rights , which act on the basis of international agreements ratified by GPE , with the ORG and public and local government institutions , is mailed through the intermediary of the organ at whose disposal he remains . ”" ]

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[ "The first applicant , Mr PERSON , born in DATE , is a national of GPE . The other applicants are his former wife , PERSON , and their QUANTITY children , Lucky and PERSON , all NORP nationals and born in DATE and DATE respectively , and his son from an earlier relation , LOC , who holds the same nationality as his father and was born in DATE . These CARDINAL are living in GPE while the first applicant is residing in GPE , in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE ) .", "s , may be summarised as follows .", "The first applicant belongs to the GPE ( ethnic NORP of NORP origin ) and he was born and raised in the city of GPE in the eastern part of GPE ( hereinafter referred to as “ the ORG ” ) . In DATE he fled to GPE because he was a member of an illegal political party in the ORG . In DATE he travelled to GPE to participate in military training but he returned to GPE at DATE . In DATE , he went to GPE where , in DATE , ORG ) rejected his application for asylum but granted him a permanent residence permit based on “ de facto ” reasons due to the situation in the ORG ( then GPE ) combined with the applicant 's personal situation .", "In DATE the first applicant married the second applicant in GPE , from where she originates and was living . She then travelled with him to GPE where she was granted a permanent residence permit in DATE . On DATE their son , Lucky , was born and , on DATE , their daughter , PERSON , was born . These CARDINAL have since been granted NORP citizenship .", "Moreover , in DATE , the family was joined by the first applicant 's son , PERSON . He had lived in GPE with his mother and came to GPE because his mother died .", "According to the first and second applicants , they divorced just before the expulsion of the first applicant for practical reasons . They wanted to make it easier for the second applicant to live alone in GPE with the children .", "On DATE , upon arrival at FAC in GPE , the first applicant was checked by customs officers and QUANTITY of heroin was found in CARDINAL of his bags . He was arrested and charged with an aggravated drugs crime ( grovt narkotika brott ) and the attempted aggravated smuggling of drugs ( försök till grov varusmuggling av narkotika ) .", "On DATE ORG ( tingsrätten ) of PERSON convicted the first applicant as charged and sentenced him to DATE imprisonment and expulsion from GPE with a prohibition on returning before DATE . When deciding the DATE imprisonment , ORG took into account the detriment caused to the first applicant by the expulsion and reduced the normal prison sentence , which would have been DATE imprisonment .", "Concerning the expulsion , ORG had requested ORG to submit its observations on the matter . ORG observed that the reasons invoked by the first applicant at the time when he was granted a permanent residence permit were not such that , according to the current practice , he would have been granted such a permit on humanitarian grounds . However , the ORG found that it could not be excluded that , due to the situation in the ORG , there might be an impediment to the enforcement of an expulsion order .", "ORG considered that the first applicant had a strong connection to GPE because of his family and the fact that he had resided there for DATE by that time . However , it noted that he had been convicted of lesser offences on CARDINAL previous occasions : unlawful driving in DATE , aggravated unlawful driving in DATE , unlawful driving and aggravated drink - driving in DATE , shop - lifting in DATE and the unlawful use of documents in DATE . Moreover , the present offence was of a very serious nature having regard to the amount of heroin and its dangerousness to individual abusers and society as a whole . In these circumstances , the court concluded that there were particular reasons for expelling the applicant with a prohibition on returning before DATE .", "The first applicant appealed to ORG ( PERSON hovrätt ) , requesting that his prison sentence be reduced and the expulsion order repealed .", "On DATE ORG upheld the lower court 's judgment in full . With regard to the expulsion , it shared ORG reasoning , adding that the first applicant had not succeeded in establishing himself on the NORP labour market or adjusting to NORP society , despite DATE in the country . It also observed that he kept in contact with his relatives in LOC whom he had visited for DATE during DATE .", "The first applicant appealed to ORG ( ORG domstolen ) which , on DATE , refused leave to appeal .", "In DATE the applicants requested ORG , through ORG , to revoke the expulsion order and let the first applicant stay in GPE with his family . On DATE the Government rejected the request on the grounds that there was neither any impediment against the enforcement of the expulsion nor any other special reason under LAW to revoke the expulsion order .", "In DATE the applicants lodged a new application with the ORG , requesting the revocation of the expulsion order . Primarily , the applicants invoked humanitarian grounds and LAW , claiming that it would be inhuman to separate the family , in particular having regard to the children and their need for their father during their up - bringing . However , the first applicant also alleged that the very unstable situation in the ORG , and the fact that he belonged to a minority which was discriminated against , constituted impediments to his expulsion . With reference to ORG statement that he had visited relatives in LOC during DATE , he stated that he had not visited the ORG since he came to GPE in DATE , but that the visit had been to GPE .", "On DATE , after a request by the Government , ORG ( Migrationsverket ) submitted its observation regarding the matter . It considered that the situation in the ORG had significantly improved after a peace agreement with GPE in DATE and a deal between the ORG and rebel groups in DATE . Thus , ORG found that there was no general impediment to sending persons back to that country . It noted that the ORG shared this view . It further considered that , even with regard to first applicant 's ethnicity , there was no personal impediment to enforcing the expulsion order against him .", "The first applicant objected to ORG conclusions , stating that he had no relatives in GPE and would not be able to support himself if sent there . He invoked a statement , dated DATE , by PERSON , an Information Officer at ORG ( PERSON ) , in which Mr ORG stated that the situation in the ORG was still very unstable and that fundamental human rights were not guaranteed . Moreover , since the first applicant did not have any relatives in GPE and did not speak the local language of the area , he would not be able to survive there and would face grave risks because he was GPE and this group was discriminated against and disliked in most parts of the country .", "On DATE the first applicant was conditionally released from prison but placed in detention awaiting expulsion .", "On DATE the Government rejected the request to have the expulsion order revoked , finding no reason to change their previous decision .", "On DATE , DATE , the first applicant was expelled to the ORG . Apparently , he arrived in GPE where he remained for some time before travelling to his home town , GPE , where relatives have been helping him . He regularly calls his CARDINAL children , and his eldest son transfers money to him DATE .", "Pursuant to LAW , LAW ( ORG ) , a crime may , apart from ordinary sanctions , result in special consequences defined by law . Expulsion on account of a criminal offence constitutes such a special consequence .", "Provisions on expulsion on this ground are laid down in LAW . According to LAW , section CARDINAL of the LAW , an alien may not be expelled from GPE on account of having committed a criminal offence unless certain conditions are satisfied . First , he or she must have been convicted of a crime that is punishable by imprisonment . Secondly , he or she may only be expelled if the sentence is more severe than a fine , and if ( CARDINAL ) it may be assumed , on account of the nature of the crime and other circumstances , that he or she will continue committing crimes in GPE , or ( CARDINAL ) the offence , in view of the damage , danger or violation involved for private or public interests , is so serious that he or she ought not to be allowed to remain in the country .", "Furthermore , under LAW , section CARDINAL of the Act , when considering whether or not an alien should be expelled , the court shall take into account the person 's links to NORP society . As regards aliens who are considered to be refugees and in need of protection in GPE , they may be expelled only if they have committed a particularly serious crime and it would entail a serious danger for public order and safety to allow them to remain in GPE . An alien with refugee status shall be considered as a refugee in need of protection in GPE unless it is evident that he or she is no longer a refugee in such need .", "Moreover , the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision . Thus , pursuant to LAW , LAW , there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment . Further , a risk of persecution generally constitutes an impediment to enforcing an expulsion decision .", "According to LAW , section CARDINAL of the LAW , if the Government finds that a judgment or decision to expel a person on account of having committed a criminal offence can not be executed or if there are otherwise special reasons not to enforce the decision , the ORG may repeal , in part or completely , the judgment or decision of the court . The ORG may also , in accordance with LAW , LAW , of ORG ( Regeringsformen ) , pardon or reduce a penal sanction or other legal effect of a criminal act ." ]

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[ "The facts as submitted by the parties may be summarised as follows .", "Until DATE the applicants all lived in GPE , a village of NORP district in GPE , in the then state - of - emergency region of GPE .", "The applicants PERSON , ORG , PERSON , PERSON , PERSON and PERSON ( applications nos . CARDINAL/CARDINAL , FAC , CARDINAL , CARDINAL , GPE and CARDINAL respectively ) owned houses and land in NORP , whereas the other applicants cultivated land and lived in the houses owned by their fathers .", "In particular , ORG is the son of PERSON ( applications ORG . ORG and CARDINAL respectively ) .", "PERSON , ORG and ORG are the sons of PERSON ( applications nos . CARDINAL , CARDINAL , CARDINAL/CARDINAL and CARDINAL respectively ) .", "PERSON ( application no . CARDINAL/CARDINAL ) cultivated the land owned by his father PERSON .", "PERSON and PERSON are brothers ( applications nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL respectively ) . They used the property owned by their father PERSON .", "PERSON is the son of ORG ( applications nos . CARDINAL/CARDINAL and CARDINAL respectively ) .", "ORG ( application no . CARDINAL ) cultivated the land owned by his father PERSON .", "Boydaş village may be described as an area of dispersed hamlets and houses spread over mountainous terrain , where there is insufficient land suitable for agriculture . For administrative purposes the village was regarded as being in the NORP district . An extended patriarchal family system prevailed in the region , where there were no large landowners but generally small family farms . These usually took the form of livestock farms ( sheep , goats and beekeeping ) revolving around the grandfather or father and run by their married children . The applicants earned their living by farming , in particular stockbreeding , land cultivation , tree felling and the sale of timber , as did their fellow villagers .", "NORP In DATE , terrorist activity was a major concern in this area . Since DATE a violent conflict had been going on in the region between the security forces and sections of the NORP population in favour of NORP autonomy , in particular members of the ORG ( Workers’ ORG ) . This resulted in the displacement of many people from in and around GPE either because of the difficulty of life in the remote mountainous area or because of the security situation .", "The facts of the case , in particular the circumstances of the applicants’ and the denial of access to their property in GPE , are disputed .", "NORP In DATE the inhabitants of NORP were forcibly evicted from their village by security forces on account of the disturbances in the region . The security forces also destroyed the LOC houses with a view to forcing them to leave the village . The applicants and their families thus moved to safer areas , namely to ORG and GPE where they currently live in poor conditions .", "DATE and DATE the applicants petitioned various administrative authorities , namely the offices of the Prime Minister , the Governor of the state - of - emergency region , the NORP Governor and the GPE District Governor , complaining about the forced evacuation of their village by the security forces . They also requested permission to return to their village and to use their property .", "Although the ORG petitions were received by the authorities , no response was given to the applicants , except the letters in reply sent to PERSON , PERSON , GPE and ORG , within DATE prescribed by PERSON no . CARDINAL .", "By a letter of CARDINAL DATE , the GPE Governor of GPE replied to PERSON petition dated DATE and stated the following :", "“ The Project ‘ Return to the Village and Rehabilitation in ORG and LOC - eastern ORG is developed by the LOC - eastern ORG ( GAP Bölge Kalkındırma İdaresi Başkanlığı ) . It aims to facilitate the resettlement of any inhabitants who unwillingly left their land due to various reasons , particularly terrorist incidents and who now intend to return to secure collective settlement units , since the number of terrorist incidents has decreased in the region . The ORG also aims at creating sustainable living standards in the re - settlement areas .", "In this context , your petition has been taken into consideration . ”", "By letters of DATE and CARDINAL and DATE , the stateofemergency office attached to the NORP Governor ’s office stated the following in response to the petitions submitted by PERSON , GPE and ORG :", "“ Return to GPE is forbidden for security reasons . However , you can return and reside in PERSON , Karaca , PERSON , PERSON and PERSON villages .", "Furthermore , your petition will be considered under the ‘ Return to the Village and Rehabilitation Project’ . ”", "Since DATE the ORG terrorist organization waged a vicious and deadly campaign against ORG with a view to separating a part of its territory and setting up a NORP State . The terrorist campaign carried out by the ORG focused on the south - east provinces of GPE and aimed at destabilizing the region morally and economically as well as coercing the innocent population in the area to join the terrorist organisation . Those who refused to join the terrorist organisation were intimidated with random killings and village massacres . In this connection , DATE , CARDINAL incidents occurred causing the death of CARDINAL people and the wounding of CARDINAL .", "NORP This terrorist campaign resulted in a drastic movement of population from the area to more secure cities and areas of the country . Thus , the inhabitants of the villages and hamlets in the region left their homes owing to the terrorist threat by the ORG .", "NORP However , a number of settlements might have been evacuated by the local authorities to ensure the safety of the population as a precaution . According to the official figures , the number of people internally displaced on account of the terrorism is CARDINAL . This figure corresponds to the evacuation of CARDINAL houses located in CARDINAL villages and CARDINAL hamlets .", "The applicants were residents of GPE . The official records indicate that the inhabitants of NORP evacuated the village because of the ORG intimidation . They were not forced to leave the village by the security forces .", "Mr PERSON stated that he had been the mayor of GPE since DATE . He lived in the NORP district for DATE following the forced evacuation of the village in DATE . He is currently living in GPE . Mr PERSON explained that PERSON was a forest village with oak trees and pastures around it . Since the village did not have sufficient land for agriculture , the inhabitants earned their living mainly from stock breeding and treefelling .", "As to the property owned by the applicants in GPE , the mayor gave the following information :", "( i ) PERSON had land , a house , a barn and a sheep pen as well as approximately CARDINAL head of small livestock and cattle in the GPE hamlet of GPE ;", "( ii ) ORG was cultivating a number of plots of land registered in the name of his father . He owned a house , a sheep pen , a barn and a number of animals ;", "( iii ) PERSON was using CARDINAL plots of land adding up to CARDINAL dönüm ( about CARDINAL mCARDINAL ) in the north and west of GPE hamlet . He had small livestock and a number of animals ;", "( iv ) PERSON had a house , a sheep pen , a barn and a plot of land of around CARDINAL dönüm in GPE hamlet . He had CARDINAL head of small livestock and CARDINAL cattle ;", "( v ) PERSON was using , along with his father , CARDINAL plots of land adding up to CARDINAL to CARDINAL dönüm in the north of GPE . He also had a flock of small livestock together with his father ;", "( vi ) PERSON was using some leased plots of land . He further had , together with his father , a flock of CARDINAL head of small livestock ;", "( vii ) PERSON was cultivating a plot of land , approximately twohundred dönüm , owned by his father PERSON , in the Dereköy hamlet of GPE . He also had CARDINAL head of small livestock and CARDINAL cattle ;", "( viii ) PERSON was cultivating a plot of land , approximately twohundred dönüm , along with his father PERSON . He and his father also had CARDINAL head of small livestock and CARDINAL cattle ;", "( ix ) PERSON and his siblings were cultivating a plot of land , approximately twohundred dönüm , which they had inherited from their father in the hamlet of GPE . He had CARDINAL head of small livestock and CARDINAL cattle ;", "( x ) PERSON was cultivating a plot of land owned by his father PERSON . He had a house , a barn , a sheep pen and CARDINAL head of small livestock in GPE hamlet ;", "( xi ) PERSON had a few plots of land adding up to CARDINAL dönüm in total in the east of GPE and CARDINAL head of small livestock as well as CARDINAL head of cattle ;", "( xii ) ORG and his father PERSON were cultivating the land owned by the latter in GPE hamlet . ORG also had a separate house , a barn , a sheep pen and CARDINAL head of small livestock as well as CARDINAL cattle ;", "( xiii ) PERSON is the son of PERSON , and they were cultivating the land and feeding the animals mentioned above ( PERSON ) ;", "( xiv ) PERSON had a house , a barn and a sheep pen in GPE hamlet . He also had CARDINAL plots of land , adding CARDINAL dönüm , and CARDINAL head of small livestock as well as CARDINAL cattle ;", "( xv ) ORG is the son of PERSON . He was cultivating CARDINAL plots of land , CARDINAL to CARDINAL dönüm , which he inherited from his grandfather and father in the GPE hamlet of GPE . He had CARDINAL to CARDINAL head of small livestock and CARDINAL cattle .", "Following their visit to GPE on DATE , the applicants observed the following :", "“ We are the villagers who lived in GPE of the NORP district , but who had to leave since the village was forcibly evacuated . We are currently residing in the NORP district . Although we were informed that we could return to our village , nobody is living there at the moment because there are no buildings to live in , no roads , no water , no electricity , no education or health service . ”", "This document was prepared by CARDINAL gendarmes from the GPE gendarmerie command and undersigned by CARDINAL villagers from Cevizlidere in the GPE district , which is the neighbouring town of GPE . It contained the observations of the signatories on the current state of Cevizlidere and referred to the fact that everyone registered in the village was allowed to leave and enter the village freely up to that date , provided that the gendarmerie station was informed of those movements .", "This identity card was issued by the GPE district gendarmerie command for a resident of the Cevizlidere village . It contains a statement that the identity card was issued for villagers temporarily resident in Cevizlidere .", "This document pertains to the military public prosecutor ’s decision that he did not have jurisdiction in relation to CARDINAL incidents which concerned the disappearance and killing of certain individuals by unknown persons in the GPE and GPE districts of the province of GPE .", "This petition contains the complaints of the mayors about the burning of their villages and forced eviction of the inhabitants by the security forces . The mayors further allege that security forces apply an extensive embargo on foodstuffs and essential commodities in the region . They ask the Prime Minister to take necessary measures with a view to allowing the inhabitants of the villages to return to their homes and land . They also request that the damage they suffered as a result of the destruction of property and forced displacement be compensated , that economic aid be provided and that the land mines in the region be cleared .", "The above - listed documents pertain to the inability of the authorities to conduct an on - site investigation into an allegation of destruction of property in GPE village in the GPE district on account of the lack of security in the area in question .", "NORP This report was prepared by ORG composed of CARDINAL members of parliament . According to the report , in DATE and DATE the inhabitants of CARDINAL villages and CARDINAL hamlets were evicted and forced to move to other regions of the country ( p. CARDINAL ) . The number of people evicted from CARDINAL villages and CARDINAL hamlets in the province of GPE , which includes GPE , was estimated to be around CARDINAL ( p. CARDINAL ) .", "The report includes the statements given by PERSON , a member of ORG of GPE ( PERSON ) , who claimed that MONEY of the villages had been evacuated by the ORG authorities and MONEY by terrorists ( p. CARDINAL ) .", "The report also refers to ORG GPE , which includes a chapter on evacuated villages and immigrants , prepared and submitted to ORG in DATE by Mr PERSON , the chair of ORG . It appears from this report that the mayors of the evacuated villages in the GPE and NORP districts of NORP met in GPE on DATE . They noted that CARDINAL out of CARDINAL villages and hamlets attached to GPE had been evacuated and that MONEY of the evacuated villages had been burned . The mayors further pointed out that the inhabitants of the region faced starvation on account of the food embargo and that the restrictions imposed by the authorities on access to the high ground in the region had struck stock - breeding , which was the sole source of income of the inhabitants of the region . It was further noted in ORG GPE that in DATE the practice of evacuation of villages and hamlets had continued . Many houses in the villages were either destroyed or made uninhabitable . People were forced to emigrate from the region . Pressure was exerted on the inhabitants until they left their villages . In DATE there was practically no village or hamlet inhabited except those whose inhabitants agreed to become village guards .", "The report further refers to the speech delivered at ORG by Mr PERSON , a deputy from Şırnak , on DATE on the question of the evacuated villages . Mr Yıldırım stated , among other assertions , that the villages were evacuated either by the ORG , in order to intimidate those who opposed it , or by the authorities since they were unable to protect the villages or since the inhabitants of the villages refused to become village guards or were suspected of having aided the ORG ( p. CARDINAL ) .", "In conclusion , it was recommended in the report that the inhabitants of the settlement units should either be re - housed in the provinces or districts or central villages , that those who wanted to return should not be rehoused in hamlets but in central villages which were close to the area where they used to live and that necessary economic measures should be taken with a view to providing employment to the inhabitants of the region while priority was being given to the immigrants ( p. CARDINAL ) .", "ORG stressed in ORG ( DATE ) CARDINAL , in so far as relevant , that an effective remedy entailed , under LAW , a thorough and effective investigation into alleged abuses with a view to the identification of and the punishment of those responsible , as well as effective access by the complainant to the investigative procedure . ORG also expressed its regrets that repeated demands for the reform of NORP criminal procedure to enable an independent criminal investigation to be conducted without prior approval by the ORG ’s prefects had not yet been met . It therefore urged GPE to accelerate without delay the reform of its system of criminal prosecution for abuses by members of the security forces , in particular by abolishing all restrictions on the ORG competence to conduct criminal investigations against ORG officials , by reforming the prosecutor ’s office and by establishing sufficiently deterrent minimum prison sentences for persons found guilty of grave abuses such as torture and ill - treatment .", "In response to ORG Affairs’ letter of DATE which contained a request for information as to whether it was possible for the applicants to return to GPE in the NORP district of GPE , PERSON , a gendarmerie senior colonel , stated , on behalf of the Gendarmerie General Commander , that there was no obstacle to the return of the citizens to their homes in GPE .", "The following can be observed from the land and aerial views of GPE on DATE : The village was located in steep terrain and was completely covered by snow . The houses , which were spread over the mountainous area , seem to have been constructed out of stones , wood , adobe and mud . The houses do not have roofs . They seem to have collapsed due to hard DATE conditions and lack of maintenance . However , the public buildings , such as the school , are intact since they seem to have been constructed of cement and stones . Access to the village seemed to be impossible on account of the lack of usable roads and the snow . Electricity and telephone supply posts are still intact , though the wires need to be repaired .", "In response to a question concerning the content , cost and the budget earmarked for DATE of the return to village and rehabilitation project , the then ORG Minister in charge of ORG stated , inter alia , the following at the parliamentary session on DATE :", "“ The aim of the project is to resettle the people who have either left or been evicted from villages , hamlets and neighbourhoods in east or south - east GPE . The project also aims at reviving these settlement units by ensuring the return of their former inhabitants . MONEY have been earmarked in the budget for DATE in respect of ORG . This fund can also be used for DATE . The funds to be used in DATE for the project have been earmarked by ORG ( PERSON ) and included in the budget of ORG . The project will be implemented by ORG . ”", "At the parliamentary session of DATE , PERSON , the then Minister of the ORG , reported on the return to village and rehabilitation project . He noted that the project was being implemented in east - and south - east GPE and that sufficient funds had been earmarked in the budget for CARDINAL provinces under the state - of - emergency rule . The Minister pointed out that the governor of the state of emergency region , of his own motion , had been supplying cement , iron and bricks to those who voluntarily sought to return to their former settlement units . The Minister further noted that CARDINAL persons had returned to their homes in CARDINAL villages and CARDINAL hamlets . As regards the investments to be made to facilitate the return of the villagers , he explained that priority had been given to central villages which would provide services to sub - settlement units in east and south - east GPE .", "At the parliamentary session of DATE Mr PERSON ORG , a deputy for the province of PERSON , submitted that CARDINAL people had been forcibly displaced and that their houses had been destroyed . He welcomed however the termination by the authorities of the food embargo imposed on the inhabitants of the region ( east and south - east GPE ) . He pointed out that the return of the displaced persons to their homes would make an important contribution to the improvement of the NORP economy . In response to Mr ORG ’s comments , the Minister of the ORG provided information on implementation of the return to village and rehabilitation project .", "On DATE , CARDINAL DATE and DATE and CARDINAL DATE and DATE parliament debated the issue of displaced persons and implementation of the return to village and rehabilitation project . At the parliamentary session on the latter date , Mr ORG , a deputy for GPE , stated that since DATE permission had been issued by the authorities for the return of CARDINAL people to their homes in the CARDINAL provinces where emergency rule was in force .", "Following an on - site visit carried out by members of the ORG , a report was issued on developments in GPE . The ORG noted , inter alia , that CARDINAL houses had been built and given to those in need of shelter in the NORP district within the context of the return to village and rehabilitation project . ORG recommended that implementation of the latter project be accelerated , that the villagers be allowed to return and that economic aid be supplied to those who wanted to return .", "CARDINAL meetings were held on DATE and CARDINAL DATE at the Secretariat General for ORG , attended by representatives of the ORG , ORG and ORG . The participants considered the situation of the internally displaced persons and examined the return to village and rehabilitation project . Following these meetings , a technical working group was set up , which held CARDINAL meetings to discuss various related issues .", "This document , prepared in DATE by the Presidency of ORG attached to ORG , sets out the content of the project , the work carried out within the context of this project , the principles of the project and the investments made and aid provided in accordance with the project . It appears from this document , in so far as relevant , that according to the figures of DATE left GPE , CARDINAL people submitted applications for return and CARDINAL of them were allowed to return by the authorities . The authorities provided monetary aid and aid in kind with the sums of MONEY ( TRL ) and TRL CARDINAL respectively for the province of GPE .", "This document , submitted by ORG attached to the Prime Minister ’s office , contains information on the measures taken by the authorities to resettle displaced persons in GPE , PERSON , Batman , PERSON and PERSON .", "This sub - project was prepared , by ORG attached to the Prime Minister ’s office , to ensure the return of displaced persons to their former settlement units within a short time , to better use economic resources and to avoid any possible problems regarding the services to be provided to the inhabitants . It describes the principles to be followed in the implementation of the return to village and rehabilitation project .", "This document indicates that the provinces of GPE , PERSON , Batman , PERSON and PERSON received monetary aid totalling GPE CARDINAL ( approximately CARDINAL,CARDINAL,CARDINAL.CARDINAL euros ( ORG ) ) DATE within the context of the return to village and rehabilitation project . It was noted that MONEY ( ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ) were allocated for DATE for the abovementioned provinces .", "In a case brought by PERSON , who claimed that he had abandoned his village due to the terror incidents , that he had not been able to return to his village since DATE on account of the lack of security and that he had suffered damage on account of not being able to use his property , ORG awarded compensation ( decision no . CARDINAL , on file no . CARDINAL , DATE ) . Relying on the “ social risk principle ” the latter reasoned that the damage sustained by the plaintiff must be compensated without the establishment of a “ causal link ” and that it should be shared by society as a whole since the administration had failed in its task of preventing the terror incidents .", "In an appeal case lodged with ORG ( decision no . CARDINAL/CARDINAL , on file no . CARDINAL/CARDINAL , DATE ) against the judgment rendered by ORG , the appellant , PERSON PERSON , alleged that he had left his village in the province of Ağrı on account of the terror incidents and of the lack of security and that he had suffered damage because he had not been able to use his property since DATE .", "ORG acceded to the plaintiff ’s request and overruled the first - instance court ’s judgment . The former court noted that the plaintiff had left his village owing to the terrorist incidents and not at the request or by the instructions of the administration . On that account , it considered that , even if the damage sustained by the plaintiff could not be ascribed to the administration and though there was no “ causal link ” , the administration was liable since it had failed to prevent terrorist incidents and maintain security .", "The Government submitted a copy of an application form for return to village , filled in by the applicant Mr PERSON . This form contains information on the applicant ’s identity and family situation , his education level , the village he left , settlement unit he wants to return to and a query as to whether he has suffered any damage on account of the terrorism and if so , how .", "In his application form filed with the GPE District Governor ’s office , Mr PERSON noted that he wanted to return to ORG and that he had left his village due to the terrorism . He further noted that his house had been burned , that his fields had been damaged and that he wanted to return on account of economic difficulties . A similar form was also filled in by a certain PERSON", "It appears from the records of ORG that the applicants Mr PERSON and Mr PERSON received monetary aid or aid in kind , such as food , medicine and heating supplies , DATE . The aid received by the applicants was TRL CARDINAL and GPE CARDINAL respectively .", "Mr PERSON had also requested aid , but the authorities could not supply it since he was out of town .", "It also transpires from other documents that some of the villagers of the NORP district were given beehives , sheep or cows to provide a source of income .", "These documents give detailed information on the personal state of each of the applicants .", "The Government submitted documents entitled “ Personal information form for the inhabitants of GPE who filed an application with the ORG ” in respect of each of the applicants . These documents contained detailed information on the personal situation of the applicants , namely their father ’s name , date of birth , village , the amount they had declared for tax for DATE and the immovable property registered with their title .", "DATE Mr PERSON , the rapporteur of ORG , established by ORG of ORG , carried out a fact - finding visit to GPE concerning the “ humanitarian situation of the displaced NORP population in GPE ” . Mr PERSON prepared a report based on the information gathered from a number of sources , including his visit , official statements by the NORP authorities and information received from local and international non - governmental organisations , as well as international governmental organisations .", "NORP In this report , PERSON drew attention to the controversy concerning the figures for displaced persons . The NORP authorities’ official figure for “ evacuated persons ” amounts to QUANTITY originating from CARDINAL villages at DATE , whereas credible international estimates concerning the population displaced as a result of the conflict in south - east GPE range CARDINAL by DATE . As to the cause of the movement of the population , the NORP authorities maintained that the movement was not caused by the violence in the region alone . They contended that economic factors also accounted for the “ migration ” . The report , recognising the situation of internal displacement due to the conflict in the region , confirmed the ORG ’s stand point . However , it pointed out that there was no doubt that there had been a major displacement and migration to towns affecting those caught in the crossfire of the conflict : on the one hand NORP security forces had targeted villages suspected of supporting the ORG . On the other hand the ORG had assassinated inhabitants of the villages “ collaborating ” with the ORG authorities ( i.e. belonging to the village guards system ) or refusing to support the ORG . This vicious circle of violence had forced many people to flee their homes .", "Mr PERSON pointed to the failure of ORG to provide emergency assistance to people forcibly displaced in the south - east , including persons displaced directly as a result of the actions of the security forces . He further underlined the failure of the Government to provide a sanitary environment , housing , health care and employment to the internally displaced population .", "As to the prospects for the future , Mr PERSON observed that the respondent Government had started developing return and rehabilitation projects DATE . However , the first returns had occurred in DATE , as the region had not been secure before the latter date . Despite obvious improvements , security remained the main concern conditioning mass return movements . On the one hand , the authorities felt reluctant to allow for a large influx of returnees fearing the return of ORG militants . For that reason , they scrutinize every application and did not authorize returns to certain areas . On the other hand , the displaced population was in most cases unable to return without state financial or subsistence assistance and sometimes reluctant because of fresh memory of the atrocities committed in the past . Nevertheless , ORG ( ORG ) , which is a comprehensive development programme aimed at the ending of the disparities between this region and the rest of the country , financed a number of projects concerning the return and resettlement of displaced persons . Among them was the “ town - villages project ” , which , through the construction of centralised villages , had allowed CARDINAL displaced persons to return to their region . According to the official figures , CARDINAL persons had returned to CARDINAL villages up to DATE . Even so , a number of human rights organisations were critical of the ORG ’s efforts since the application forms for those who wished to return included a question concerning the reason for leaving the village . According to these organisations , displaced persons were not allowed to return unless they gave the actions of the ORG as a reason . Furthermore , there had been allegations that return was authorised only to the villages within the village guard system .", "Mr PERSON concluded with satisfaction that the humanitarian situation in the region had progressed in relation to the situation presented in the last report of ORG ; although the aims of provision of full security for mass returns and taking measures for revitalisation of the economy were still to be achieved . He made recommendations to ORG concerning a number of issues , which constituted the basis for Recommendation DATE ) of ORG of ORG .", "On DATE ORG of ORG adopted Recommendation DATE ) on the “ humanitarian situation of the displaced NORP population in GPE ” . ORG urged GPE to take the following steps :", "“ a. lift the state of emergency in the CARDINAL remaining provinces as quickly as possible , namely in PERSON and GPE , ORG and PERSON ;", "b. refrain from any further evacuations of villages ;", "c. ensure civilian control over military activity in the region and make security forces more accountable for their actions ;", "d. step up investigations into alleged human rights violations in the region ;", "e. properly implement the rulings of ORG ;", "PERSON abolish the village guard system ;", "g. continue its efforts to promote both the economic and social development and the reconstruction of the south - eastern provinces ;", "h. involve representatives of the displaced population in the preparation of return programmes and projects ;", "i. speed up the process of returns ;", "j. allow for individual returns without prior permission ;", "k. not to precondition assistance to displaced persons with the obligation to enter the village guard system or the declaration on the cause of their flight ;", "l. present reconstruction projects to be financed by ORG in the framework of return programmes ;", "m. adopt measures to integrate those displaced persons who wish to settle in other parts of GPE and provide them with compensation for damaged property ;", "n. grant full access to the region for international humanitarian organisations , and provide them with support from local authorities . ”", "DATE the Representative of the Secretary - General of ORG on internally displaced persons , PERSON PERSON , undertook a visit to GPE , at the invitation of the Government of GPE . He aimed to gain a first - hand understanding of the situation of the displaced and to engage in a dialogue with the Government , international agencies , non - governmental organisations and representatives of the donor countries . Following his visit the Representative prepared a report which was submitted to ORG .", "Mr PERSON reported that the figures concerning the displaced population ranged widely CARDINAL persons , predominantly of ethnic NORP . Regarding the cause of the displacement in GPE , the Representative contended that the situation of displacement had mainly resulted from armed clashes , violence and human rights violations in south - east GPE . Like the rapporteur of ORG , he recognised the Government ’s claim that economic factors also accounted for the population movements .", "Mr PERSON stated that the majority of the displaced persons had moved into provincial cities , where they had reportedly lived in conditions of extreme poverty , with inadequate heating , sanitation , infrastructure , housing and education . He noted that the displaced persons had to seek employment in overcrowded cities and towns , where unemployment levels were described as “ disastrous ” . Mr PERSON observed that the Government officials were mainly concerned with explaining the initiatives that the authorities were taking regarding the return and resettlement of the displaced population . He further observed that there was a tendency not to refer to the current conditions of the displaced . He noted that the problems of the displaced were not specific to the displaced , but affected the population of south - east GPE as a whole .", "Regarding the return and resettlement initiatives , Mr PERSON primarily reported the “ Return to Village and Rehabilitation Project ” , which was announced by ORG in DATE . Citing the positive aspects of the project , such as the feasibility study conducted prior to the development of the project and the voluntary nature of any return and resettlement , PERSON expressed his concerns on a number of issues . He noted that the extent of the consultation with the displaced and the nongovernmental organisations working on their behalf might be insufficient . He further reported the concerns regarding the plan of a new centralised settlement pattern , as opposed to the traditional pattern of CARDINAL large settlement ( village ) surrounded by smaller settlements ( hamlets ) . PERSON PERSON noted that , although establishing security in the region through promoting centralised settlement units was a legitimate policy , the authorities should consult the displaced themselves . CARDINAL other issues that were of concern for Mr PERSON were the absence of basic data which would give an accurate picture of the displacement and the failure to implement the project .", "As to return and resettlement initiatives other than the “ Return to Village and Rehabilitation Project ” , Mr PERSON noted that there had not been sufficient information as to their target groups and how exactly they related to one another .", "Concerning the obstacles to return , Mr PERSON referred to the practice of requiring persons to declare that they would not seek damages from the ORG . PERSON noted that Government officials denied the existence of a non - litigation clause in the application forms for those who wished to return . Furthermore , he had received information concerning the application forms , which included a question concerning the reason for leaving the village . According to the reports , only those persons who stated that they had been displaced as a result of “ terror ” were allowed to return . Mr PERSON further noted that there had been allegations that return was authorised only to villages within the village guard system . He finally noted that antipersonnel mines posed a threat to those who wished to return to their villages in south - east GPE .", "The recommendations of ORG on internally displaced persons were summarised as follows :", "“ a. The Government should clarify its policy on internal displacement , including return , resettlement and reintegration , make its policy widely known , create focal points of responsibility for the displaced at various levels of the government structures , and facilitate co - ordination and co - operation among government institutions and with non - governmental organisations , civil society and the international community .", "b. The Government should enhance their efforts to address the current conditions of the displaced , which are reported to be poor , in co - operation with non - governmental organisations and ORG agencies .", "c. The Government should provide more comprehensive and reliable data on the number of persons displaced as a result of the actions of both ORG ( ORG ) and the security forces , on their current whereabouts , conditions and specific needs , and on their intentions with respect to return or resettlement .", "d. The Government should facilitate broad consultation with the displaced and the non - governmental organisations and civil society organisations working with them . The Government should further consider producing a document that clearly outlines the objectives , scope and resource implications of the Return to Village and Rehabilitation Project . Finally the results of the feasibility study conducted should be made public and the Government should facilitate an open discussion with the displaced and non - governmental organisations on the findings of this study and the steps which should be taken to implement them .", "e. The Government should examine areas of possible co - operation with the international community . In this connection , the ORG might consider convening a meeting with international agencies , including ORG , and representatives of the potential partners to explore ways in which the international community could assist the Government in responding to the needs of the displaced .", "f. The Government should ensure a nondiscriminatory approach to return by investigating and preventing situations in which former village guards are allegedly given preference in the return process over those persons perceived as linked to ORG .", "g. The Government should ensure that the role of the security forces , or jandarma , in the return process is primarily one of consultation on security matters . Displaced persons who have been granted permission by the authorities to return to their villages - the decision being based on the advice of the jandarma - should be allowed to do so without unjustified or unlawful interference by the jandarma .", "h. The Government should take steps to abolish the village guard system and find alternative employment opportunities for existing guards . Until such time as the system is abolished , the process of disarming village guards should be expedited .", "i. The Government should undertake mine clearance activities in the relevant areas of the south - east to which displaced persons are returning , so as to facilitate that process .", "j. The Government should enhance their efforts to develop legislation providing compensation to those affected by the violence in the south - east , including those who were evacuated from their homes by the security forces . ”", "DATE . Article CARDINAL of the LAW provides :", "“ All acts or decisions of the administration are subject to judicial review ...", "The administration shall be liable to indemnify any damage caused by its own acts and measures . ”", "The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on the concept of collective liability and referred to as the theory of “ social risk ” . Thus , the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .", "The principle of administrative liability is reflected in the additional section CARDINAL of Law no . CARDINAL of DATE on ORG , which provides :", "“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON shall be brought against the administration before the administrative courts .", "The Criminal Code makes it a criminal offence", "( a ) to deprive an individual unlawfully of his or her liberty ( LAW generally , LAW servants ) ;", "( b ) to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ;", "( c ) to issue threats ( LAW ) ;", "( d ) to make an unlawful search of an individual ’s home ( ORG CARDINAL and CARDINAL ) ;", "( e ) to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or , where human life is endangered , aggravated arson ( Article CARDINAL ) ,", "( f ) to set fires unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) ; or", "( g ) to damage another ’s property intentionally ( Article CARDINAL ) .", "For all these offences complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .", "If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of the Military Code . Proceedings in these circumstances may be initiated by the injured persons ( nonmilitary ) before the competent authority under LAW , or before the suspected ORG hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .", "If the alleged perpetrator of a crime is an agent of the ORG , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . An appeal against the local council ’s decisions lies to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .", "Any illegal act by civil servants , be it a crime or a tort , which causes pecuniary or non - pecuniary damage may be the subject of a claim for compensation before the ordinary civil courts .", "DATE . Under LAW ( Law No . CARDINAL of DATE ) those who have suffered damage on account of a wrongful act of the administration may bring compensation proceedings against the latter within DATE from the date on which they learned of the impugned act and , in any event , within DATE from the commission of that act . The proceedings before the administrative courts are in writing .", "Damage caused by terrorist violence may also be compensated out of ORG .", "DATE . Persons who have sustained damage as a result of an administrative act may file an application with the superior authority of the relevant administration and request the annulment , withdrawal or alteration of the impugned act ( LAW ) . The administrative authorities’ failure to reply within DATE is considered to be a tacit refusal of that request ( LAW ) . The persons concerned may then bring an action before the administrative courts requesting the annulment of the administrative act and compensation for their damage ( LAW ) .", "NORP The governor ’s office of the state of emergency region was set up with special powers after the state of martial law was officially declared to be over on DATE by a legislative decree ( no . CARDINAL of DATE ) . A state of emergency was thus decreed in the provinces of ORG , ORG , PERSON , PERSON , PERSON , GPE and PERSON . On DATE the state of emergency was extended to the province of ORG , but lifted in the province of ORG . It was declared to be over in the provinces of Batman , ORG and ORG on DATE , in the province of GPE on DATE , in the provinces of GPE and PERSON on DATE and in the provinces of GPE and PERSON on DATE .", "In accordance with LAW no . CARDINAL on ORG ( DATE ) , state of emergency councils and offices were set up within the emergency region with a view to monitoring incidents , implementing and assessing measures taken by the authorities and making proposals in this regard . Should the governor of the state of emergency region consider it necessary , or in provinces where a state of emergency has been decreed , state of emergency offices are to be set up in the provinces and the districts . The state of emergency offices are to be presided over by the governors or their deputies in the provinces and by the district governors in the districts .", "Under section CARDINAL of Law no . CARDINAL , the governor of the state of emergency region may delegate part or all of the duties and powers conferred on him to the governors of the provinces in the state of emergency region .", "Extensive powers have been granted to the governor of the state of emergency region ( PERSON GPE ) by decrees enacted under PERSON no . CARDINAL on ORG , especially Decree no . CARDINAL , as amended by Decrees nos . CARDINAL and CARDINAL , and Decree no . CARDINAL .", "According to LAW no . CARDINAL , the governor of the state of emergency region can order the permanent or temporary evacuation of villages . Under LAW b ) of Decree no . CARDINAL of DATE , he can also impose residence restrictions and enforce the transfer of people to other areas .", "The relevant part of Article CARDINAL § CARDINAL of the LAW provides :", "“ ... There shall be no right of appeal to ORG to contest the form or substance of legislative decrees issued during a state of emergency , a state of siege or in wartime . ”", "DATE Decree no . CARDINAL , as amended by LAW no . CARDINAL of CARDINAL DATE , precludes any application in the administrative courts to have an administrative act performed pursuant to Legislative Decree no . CARDINAL set aside .", "DATE of Decree no . QUANTITY provides :", "“ No criminal , financial or legal responsibility may be claimed against the state of emergency regional governor or a provincial governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree , and no application shall be made to any judicial authority to this end . This is without prejudice to the rights of individuals to claim indemnity from the ORG for damage suffered by them without justification . ”", "The public prosecutor does not have jurisdiction with regard to offences alleged against members of the security forces in the state of emergency region . LAW no . CARDINAL provides that all security forces under the command of the regional governor are subject , in respect of acts performed in the course of their duties , to the Law of DATE on the prosecution of civil servants . Thus , any prosecutor who receives a complaint alleging a criminal act by a member of the security forces must decline jurisdiction and transfer the file to ORG . These councils are composed of civil servants , chaired by the governor . A decision by the ORG not to prosecute is subject to an automatic appeal to ORG . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .", "ORG has reviewed the constitutionality of LAW no . CARDINAL , as amended by LAW no . CARDINAL of CARDINAL DATE , in a judgment of DATE , which was published in ORG on DATE . It stated :", "“ It is not possible to reconcile that provision [ which precludes any judicial scrutiny of acts performed by the governor of the state of emergency region ] with the concept of the rule of law ... The system of government when a state of emergency has been declared is not an arbitrary one that escapes all judicial scrutiny . There can be no doubt that individual and regulatory acts performed by the competent authorities while the state of emergency continues must be subject to judicial review . Contravention of this principle is inconceivable in countries run by democratic regimes and founded on freedom . However , the impugned provision is contained in a legislative decree that can not be the subject of constitutional review ... Consequently , the application for an order quashing that provision must be dismissed as being incompatible ratione materiae ( yetkisizlik ) ... ”", "As regards LAW no . CARDINAL , in CARDINAL judgments delivered on DATE and CARDINAL DATE ( published in ORG on DATE and DATE respectively ) , ORG followed that decision in dismissing as incompatible ratione materiae applications for orders quashing the relevant provisions .", "However , by a judgment of CARDINAL DATE , ORG reversed its previous case - law and annulled LAW . CARDINAL as being unconstitutional ." ]

[ "13", "8" ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and apparently lives in Hämeenlinna without a permanent address . He is represented before the ORG by Mr PERSON , a lawyer practising in Hämeenlinna . The respondent Government are represented by Mr PERSON , director in ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was arrested together with another person who was subject to an order of arrest . An unlawful gas pistol was found in the applicant 's possession . Later the applicant became suspected of other , mainly property offences . Several bags were seized from the car in which the applicant was when arrested . The bags contained , inter alia , several car keys , some of which had been filed , and a skeleton key .", "On DATE the applicant was charged with several offences before ORG ( käräjäoikeus , tingsrätt ) of PERSON . This included a charge of being in possession of objects which could be used for committing property offences . This charge was based on LAW , section CARDINAL of LAW ( rikoslaki , strafflag ) and read as follows :", "“ [ The applicant ] and PERSON [ a co - defendant ] , who must be regarded as vagrants within the meaning of LAW , section CARDINAL of LAW , had on DATE in GPE in their possession CARDINAL car ignition keys , some of which had been filed , a skeleton key of NORP origin and other equipment suitable for lock picking . ”", "In ORG the public prosecutor recalled that although the Act on Vagrants ( irtolaislaki , lagen om lösdrivare ; CARDINAL ) had been abolished , the concept of “ a vagrant ” was still maintained in LAW , section DATE , of LAW . The prosecutor claimed that the applicant and his co - accused had both admitted to have been wandering around for DATE and maintained that they should be regarded as “ vagrants ” within the meaning of LAW .", "The applicant denied being “ a vagrant ” . During the proceedings the applicant also submitted , inter alia , that he had been living in Riihimäki in an apartment he had been renting since DATE and that as CARDINAL of the charges concerned a provision of law which could only be applied to people without a permanent address ( i.e. to so - called vagrants ) , it could not be applied to him .", "According to the public prosecutor LAW , section DATE , of LAW was to be interpreted as applying to persons wandering around , i.e. “ a vagrant ” , and in possession of objects which could be used when committing a burglary ( i.e. keys or skeleton keys ) . In the final hearing the public prosecutor further interpreted the said section as prohibiting a person who regularly committed property crimes from possessing objects such as skeleton keys .", "On DATE ORG convicted the applicant on several counts , including the count under LAW , section CARDINAL of LAW . The applicant was sentenced to DATE and DATE imprisonment . The court also ordered that , inter alia , CARDINAL car keys and a skeleton key be confiscated from the applicant .", "As to LAW , section CARDINAL of LAW ORG found the provision applicable and in force even though the comparable provision of the old Act on Vagrants had been abolished . According to the court , the notion of “ vagrant ” had its own independent meaning in LAW . The relevant provision prohibited a person who was wandering around and living rough from being in the possession of certain equipment , if that equipment could , in the light of that person 's behaviour and other circumstances , be considered as in his possession for the purpose of committing an offence .", "The applicant 's co - defendant was convicted on several counts . He was however not convicted of possession of skeleton keys pursuant to LAW , section CARDINAL of LAW due to lack of evidence .", "On DATE the applicant appealed to ORG , maintaining , inter alia , that he was not “ a vagrant ” as he had had a permanent address since DATE and could therefore not be convicted under LAW , section CARDINAL of LAW .", "On DATE ORG upheld ORG judgment . As to the applicant 's conviction as “ a vagrant ” within the meaning of LAW , section CARDINAL of LAW , ORG recalled that the old Act on Vagrants was revoked on DATE . According to the travaux préparatoires of ORG for ORG ( päihdehuoltolaki , lag om missbrukarvård ; CARDINAL ) , which replaced the Act on Vagrants , LAW , section CARDINAL of LAW was not to be amended . ORG , thus , found that the revoked Act on Vagrants and the practice built on it had not lost its relevance for the interpretation of LAW , section CARDINAL of LAW . According to LAW , subsection CARDINAL(CARDINAL ) of the revoked LAW on Vagrants “ a vagrant ” was , inter alia , a person who by his way of life endangered public order or safety . ORG noted that the applicant had been convicted and sentenced to imprisonment for , inter alia , offences against property on numerous occasions during DATE . It therefore found that the applicant endangered public order and safety by his criminal way of life and was , accordingly , to be regarded as “ a vagrant ” within the meaning of LAW , section CARDINAL of LAW .", "On DATE the applicant applied for leave to appeal to ORG and requested that the conviction be quashed or , at least , that the case be referred back to ORG or ORG for an oral hearing . On DATE ORG refused the applicant leave to appeal .", "Section CARDINAL of the LAW ( perustuslaki , grundlagen ; GPE ) provides that no one shall be found guilty of a criminal offence or be sentenced to a punishment on the basis of a deed , which has not been determined to be punishable by an LAW at the time of its commission . The penalty imposed for an offence shall not be more severe than that provided by an LAW at the time of commission of the offence . This section corresponds to section CARDINAL ( CARDINAL ) of the repealed LAW ( hallitusmuoto , regeringsformen ) , in force at the relevant time .", "LAW , section CARDINAL of LAW ( as in force at the relevant time ) provided that a vagrant who was found with a lock pick or a skeleton key should be sentenced to a fine . The said provision was enacted in DATE , when the existing LAW entered into force , and has not been amended until DATE .", "The ORG passed a PERSON for the amendment of LAW of LAW ( ORG Reply CARDINAL ) . The amendment entered into force on DATE . In this context , section DATE was repealed .", "According to the new LAW , section DATE ( CARDINAL ) of LAW , concerning possession of tools used for burglary , a person who without an acceptable reason has in his / her possession a key to the lock of another or a skeleton key or other implement that can justifiably be suspected as intended for use primarily for entry into closed LOC in the possession of another for the commission of an offence , shall be sentenced to a fine for possession of a burglary implement .", "Section CARDINAL of the Act on Vagrants provided until DATE that a vagrant pursuant to the LAW was , inter alia , a person fit to work who was unemployed without sufficient sustenance and wandered around from one locality to another without the purpose of seeking employment , and a person who acquired income by morally unacceptable or indecent means , or who by his or her way of life otherwise manifestly endangered public order , safety or morality .", "The ORG which had been set up to assess the effects of repealing the Act on Vagrants ( Committee Report CARDINAL:CARDINAL , p. CARDINAL ) held that “ [ section CARDINAL in LAW of LAW ] was never intended to refer to “ vagrants ” within the meaning of LAW or the earlier Decree ” . The ORG maintained that most of the referrals in the legislation to the concept of “ a vagrant ” had lost their meaning after the repealing of the Act on Vagrants . The concept of “ a vagrant ” in LAW , section CARDINAL of LAW was however regarded as being originally independent from the concept pursuant to LAW . The ORG recommended that the provision should be clarified in connection with the general reform of LAW .", "At the relevant time there were some references in the legislation to the concept of “ a vagrant ” . Firstly , LAW ( asetus joka sisältää maaseudun yleisen järjestyssäännön ; förordning innefattande allmän ordningsstadga för landsbygden ; CARDINAL/CARDINAL ) was in force until DATE . Its section DATE , subsection CARDINAL provided , inter alia , that nobody was allowed to hide a vagrant in his / her home .", "Secondly , the LAW on the Publicity of Official Documents ( laki yleisten asiakirjain julkisuudesta ; lag om allmänna handlingars offentlighet ; CARDINAL ) was in force until DATE , i.e. , at the time of the offence in question . In the said Act there was an outdated reference to ' vagrants register ' ( irtolaisrekisteri , registret över lösdrivare ) , which register no longer existed .", "In the ORG 's PERSON . CARDINAL/CARDINAL on LAW for ORG ( päihdehuoltolaki , lag om missbrukarvård ; CARDINAL ) , which replaced the Act on Vagrants , it is stated that characteristics of a vagrant are a drifting life , rejection of work , begging and an indecent life . It was held that the LAW was largely based on the Decree on Vagrants from DATE and that there were significant regional differences in applying LAW . It was maintained that the characteristics of a vagrant could no longer be regarded as appropriate criteria for admitting people to involuntary health care .", "In the subsequent Government 's PERSON . CARDINAL concerning the amendment of the provisions of LAW of LAW it was held that “ [ T]he concept of “ a vagrant ” lacks an appropriate meaning in the contemporary language of a modern society . ” It was also held that the existing provisions of LAW , section CARDINAL provided a certain justification for the prohibition of possession of burglary implements albeit it was regarded as limited in nature and , more particularly , was open to interpretation ." ]

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[ "The applicant was born in GPE in DATE . It appears that he currently lives in GPE .", "On DATE ORG of ORG ( “ the ORG ” ) indicted the applicant on serious fraud charges . According to the decision on indictment , the applicant had failed to pay for CARDINAL TV sets which he had received under a consignment agreement with a joint stock company . On DATE ORG ordered the arrest of the applicant . On DATE the applicant 's name was put on a wanted list .", "On DATE the applicant was arrested in GPE ( see paragraph CARDINAL below ) .", "On DATE ORG of GPE received a request from their counterpart in GPE for the extradition of the applicant .", "On DATE the Deputy Prosecutor General of GPE authorised the extradition of the applicant to GPE . The applicant challenged the extradition order in court .", "On DATE ORG upheld the extradition order as lawful and justified . The applicant appealed .", "On DATE ORG of GPE ( “ the ORG ” ) upheld the decision of CARDINAL DATE on appeal .", "From the submitted materials , it appears that , on an unspecified date after DATE , the applicant was extradited to GPE .", "On DATE the applicant was arrested in GPE and held in custody , first at the GPE - Paveletskiy temporary detention facility and then at remand prison no . CARDINAL/CARDINAL in GPE .", "On DATE the ORG of GPE authorised the detention pending extradition of the applicant under LAW CARDINAL § CARDINAL of the Code of Criminal Procedure ( “ the ORG ” ) without providing a time - limit for his detention .", "On DATE the applicant appealed against the decision of CARDINAL DATE to ORG ( see paragraph CARDINAL above ) . In his appeal , he also stated that his detention from DATE to CARDINAL DATE had been unlawful because he had been detained without a court order and that the overall length of his detention had been excessive .", "In its decision of CARDINAL DATE ORG ( see paragraph CARDINAL above ) left without examination the complaints concerning the lawfulness of the applicant 's detention .", "For a summary of domestic law provisions on detention on remand , see PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) ." ]

[ "5" ]

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[ "The applicant was born in DATE and lives in ORG , GPE .", "On DATE the applicant was arrested and allegedly beaten up by the police officers . On DATE he was remanded in custody on suspicion of robbery .", "On DATE the charges were brought against the applicant and he was provided with a legal - aid counsel .", "On DATE the applicant was released on a written undertaking not to leave the town .", "On DATE the Rostov ORG convicted the applicant of robbery and imposed a suspended sentence of DATE imprisonment on him . On DATE , however , ORG of GPE quashed the judgment on appeal and remitted the case for a retrial .", "On DATE the Rostov ORG convicted the applicant of fraud , kidnapping , illegal deprivation of liberty , extortion , burglary and theft and sentenced him to DATE and DATE imprisonment . The applicant was taken straight from the courtroom to the detention unit .", "On DATE ORG of GPE quashed the judgment of DATE on appeal and remitted the case for a retrial . ORG held that the preventive measure applied to the applicant “ should remain unchanged ” .", "On DATE the Rostov ORG listed the new trial hearing for DATE and ordered that the preventive measure applied to the applicant “ should remain unchanged ” .", "On DATE the Rostov ORG extended the applicant 's detention until DATE .", "“ The defendants [ the applicant and CARDINAL other persons ] are charged with kidnapping , illegal deprivation of liberty , burglary and other crimes .", "They have been in custody : ... , [ the applicant ] – since DATE , ...", "The Prosecutor requested that the defendants ' detention be extended by DATE .", "Having examined the ORG 's request , and having heard the parties to the proceedings , the court considers it necessary to extend the defendants ' detention by DATE , that is , until DATE inclusive , because they are charged with serious and particularly serious criminal offences .", "Under Articles CARDINAL and CARDINAL of LAW , the defendants ' detention on remand is extended by CARDINAL ( DATE , that is , from DATE to DATE . ”", "On DATE ORG upheld the extension order , finding that it was sufficiently justified .", "On DATE and DATE and DATE , DATE , CARDINAL DATE and DATE ORG extended the applicant 's detention until DATE , DATE , DATE , DATE , DATE and DATE respectively . The wording of the decisions was identical to that applied in the decision of DATE .", "The applicant appealed against each of the above - mentioned extension orders of ORG arguing that they were not sufficiently reasoned and that the court had not taken into consideration his individual situation . On DATE , DATE , DATE , DATE and DATE and DATE respectively , ORG upheld the above - mentioned decisions on appeal .", "In the meantime , on DATE the Rostov ORG , composed of presiding judge PERSON . and lay judges PERSON and PERSON , extended the applicant 's detention until DATE . The court used the same stereotyped wording and referred to the seriousness of the charges against the applicant . The applicant again appealed against the extension to ORG .", "On DATE , that is , after the applicant 's conviction by ORG ( see paragraph CARDINAL below ) , ORG of GPE discontinued the examination of the applicant 's appeal because he had been convicted in the meantime by ORG .", "As regards the trial proceedings in the period from DATE to CARDINAL DATE , the case was adjourned on over QUANTITY occasions : at the request of the applicant and his co - defendants , who wished to study the case file or the records of the hearings ; at the requests of the applicant and his co - defendants for the replacement of their representatives and the need for the newly appointed representatives to study the case file ; owing to the illness of the representatives and their failure to appear before the court ; and owing to the illness of the co - defendants or following their complaints concerning their health . On CARDINAL occasion the hearing was adjourned on account of the failure of the authorities to transport the defendants to the courtroom .", "On DATE ORG , composed of presiding judge Mr Zh . and lay judges PERSON and PERSON , found the applicant guilty of multiple counts of fraud , kidnapping , illegal deprivation of liberty , extortion , theft and burglary and sentenced him to DATE imprisonment .", "The applicant lodged an appeal . He claimed , inter alia , that the lay judges had sat on the bench unlawfully . The law had been changed and after DATE lay judges were no longer permitted to take part in the administration of justice .", "On DATE ORG of GPE , sitting as a bench of CARDINAL judges , reduced the applicant 's sentence to DATE imprisonment and upheld the rest of the judgment on appeal . CARDINAL of the judges of ORG had previously examined the applicant 's case on appeal on DATE ( see paragraph CARDINAL above ) and had also examined , on DATE , the appeal against the decision of DATE to extend the applicant 's detention until DATE ( see paragraphs CARDINAL above ) . CARDINAL other judge had previously examined the applicant 's case on appeal on DATE ( see paragraph CARDINAL above ) . As to the applicant 's allegation that the composition of the tribunal was unlawful , the court found that the trial had begun before DATE and that the participation of CARDINAL lay judges in the determination of the criminal charge against him had been in accordance with the principle of continuity of the trial .", "From DATE to DATE and from DATE to DATE the applicant was held in detention facility IZ-CARDINAL/CARDINAL of GPE - on - PERSON ( ORG ИЗ-CARDINAL/CARDINAL г. PERSON ) . Throughout this period the applicant was held in the following cells :", "( a ) cell no . CARDINAL measuring QUANTITY and designed to accommodate CARDINAL - CARDINAL detainees ;", "( b ) cell no . CARDINAL measuring QUANTITY and designed to accommodate CARDINAL - CARDINAL detainees ;", "( c ) cell no . CARDINAL measuring QUANTITY and designed to accommodate CARDINAL detainees ;", "( d ) cell no . CARDINAL measuring QUANTITY and designed to accommodate CARDINAL detainees ;", "( e ) cell no . CARDINAL measuring QUANTITY and designed to accommodate CARDINAL detainees ;", "( f ) cell no . CARDINAL measuring QUANTITY and designed to accommodate CARDINAL detainees ;", "( g ) cell no . CARDINAL measuring QUANTITY and designed to accommodate CARDINAL - CARDINAL detainees ;", "( h ) cell no . CARDINAL measuring QUANTITY and designed to accommodate CARDINAL detainees ; and", "( i ) cell no . DATE ( punishment cell ) measuring QUANTITY and designed for CARDINAL person .", "The Government were unable to provide any precise information on the number of persons detained together with the applicant , because the relevant documents had been destroyed following the expiration of the time - limit for storing them . They submitted , however , that the design capacity of the cells had not been exceeded .", "NORP In each cell the applicant had an individual bed and was provided with bedding ( CARDINAL bed sheets , a pillowslip , a blanket , a mattress and a pillow ) and tableware ( a cup , a spoon and a plate ) .", "The dimensions , number and location of the windows in the cells corresponded to the established legal norms and allowed sufficient access of daylight . Until DATE the windows were covered with metal screens ( жалюзийные решетки ) installed to prevent communication between cells .", "The cells were illuminated with QUANTITY filament lamps ( CARDINAL lamps per regular cell , CARDINAL lamp per punishment cell ) , which were on from TIME At TIME - time the cells were lit by QUANTITY security lights with tinted glass shades .", "All cells were ventilated by a system of exhaust ventilation . Natural ventilation through windows was also available .", "The cells were equipped with potable water tanks , cupboards for storage of foodstuffs , lavatory pans separated from the main area of the cells by partitions , water taps , dining tables and benches corresponding to the number of detainees , radio receivers , electric plugs and ventilation equipment .", "NORP The food was served CARDINAL times a day in accordance with the established legal norms . The quality of the food was monitored on a regular basis by the medical staff of the detention facility .", "The applicant was allowed a DATE TIME outside walk in a specially equipped exercise yard .", "In support of their observations the Government provided several certificates issued by the director of GPE on DATE and statements by prison wardens ( although not dated ) . They also submitted documents attesting to the destruction of registration logs in respect of the cells in GPE ( журналы покамерного размещения ) for the years CARDINAL following the expiry of the DATE time - limit for storing them .", "The applicant claimed that the number of detainees exceeded the design capacity of the cells by CARDINAL times and that the detainees had to sleep in shifts .", "Most cells where the applicant was detained were equipped with a small window . Access to daylight was restricted by metal screens and the arrangement of the bunks in CARDINAL or CARDINAL tiers .", "The electric lighting was too dim to enable the inmates to read .", "The ventilation system did not function most of the time .", "The bedding was hardly ever changed ; no tableware , toilet paper or personal hygiene items were provided to the applicant .", "The food was scarce and of poor quality . It was always poorly presented .", "The exercise yards were unequipped and too small to accommodate all the detainees properly .", "In support of his statements the applicant produced written depositions by CARDINAL former cellmates who had been detained with him in different cells DATE . In particular , PERSON stated that he had been detained with the applicant in cell no . DATE . The population of the cell had exceeded its design capacity by CARDINAL times . PERSON stated that he had been detained with the applicant in cell no . DATE , which accommodated from CARDINAL to CARDINAL detainees at any one time . Mr F. stated that he had been detained with the applicant in cell no . CARDINAL in DATE . The cell used to accommodate CARDINAL detainees . Finally , PERSON submitted that he had been detained with the applicant in cell no . CARDINAL , which accommodated from CARDINAL detainees . All of the above - mentioned witnesses testified that they and the other detainees had slept in shifts . They further testified to the appalling sanitary conditions in the cells , poor access to daylight , inadequate electric lighting , absence of natural ventilation and malfunctioning of the artificial ventilation system . The applicant further submitted a photograph of cell no . CARDINAL , taken on an unspecified date in DATE , in support of the above - mentioned statements .", "The Government submitted that the detention unit ( конвойное помещение ) of ORG is situated in the semi - basement of the LOC . It has CARDINAL individual cells measuring QUANTITY and CARDINAL collective cells measuring CARDINAL , QUANTITY and designed for CARDINAL , CARDINAL and CARDINAL detainees respectively . The detention unit is equipped with CARDINAL lavatory pans and wash stands ( CARDINAL for detainees and CARDINAL for those escorting them ) . All cells are equipped with benches , artificial ventilation and central heating . The cells are illuminated with filament lamps . The detainees are provided with dry rations ( сухой паек ) when taken to the courthouse . They receive hot food in accordance with the schedule before their departure from , and after their return to , the detention facility .", "The Government supported their submissions with the results of an inspection of the technical equipment of the LOC of ORG of DATE , a certificate issued by the director of IZCARDINAL/CARDINAL on DATE , the results of an inspection of the detention unit of ORG of DATE and recent photographs of the inspected LOC ( photocopies ) .", "The applicant submitted that DATE he had been transported between ORG and the detention facility on CARDINAL occasions .", "The journey to and from the courthouse took TIME .", "At the courthouse the applicant was detained in a small windowless cell without ventilation or heating . The cell was not equipped with a lavatory or a wash stand .", "No food was provided to the applicant at the courthouse .", "Until DATE criminal - law matters were governed by LAW RSFSR ( PERSON of DATE , “ the old CCrP ” ) . From DATE the old ORG was replaced by LAW ( Law no . CARDINAL of DATE , “ the new CCrP ” ) .", "“ Preventive measures ” ( меры пресечения ) include an undertaking not to leave a town or region , personal security , bail and detention ( LAW of the old ORG , LAW ) .", "LAW of DATE establishes that a judicial decision is required before a defendant can be detained or his or her detention extended ( Article CARDINAL ) .", "Under the old ORG , a decision ordering detention could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) .", "The new ORG requires a judicial decision by a district or town court on a reasoned request by a prosecutor supported by appropriate evidence ( LAW , DATE ) .", "When deciding whether to remand an accused in custody , the competent authority is required to consider whether there are “ sufficient grounds to believe ” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend ( LAW CCrP ) . It must also take into account the gravity of the charge , information on the accused 's character , his or her profession , age , state of health , family status and other circumstances ( LAW CCrP , LAW ) .", "Before DATE , detention was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment or if there were “ exceptional circumstances ” in the case ( Article CARDINAL ) . On DATE the old ORG was amended to permit defendants to be remanded in custody if the charge carried a sentence of DATE imprisonment or if they had previously defaulted or had no permanent residence in GPE or if their identity could not be ascertained . The amendments of DATE also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they had committed . The new ORG reproduced the amended provisions ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) and added that a defendant should not be remanded in custody if a less severe preventive measure was available .", "The Codes distinguished CARDINAL types of detention : the first being “ pending the investigation ” , that is , while a competent agency – the police or a prosecutor 's office – investigated the case , and the second “ before the court ” ( or “ during the trial ” ) , that is , while the case was being tried in court . Although there was no difference in practice between them ( the detainee was held in the same detention facility ) , the calculation of the time - limits was different .", "After arrest the suspect is placed in custody “ pending the investigation ” . The maximum permitted period of detention “ pending the investigation ” is DATE but can be extended for DATE in “ exceptional circumstances ” . Extensions were authorised by prosecutors of ascending hierarchical levels ( under the old CCrP ) but must now be authorised by judicial decisions taken by courts of ascending levels ( under the new ORG ) . No extension of detention “ pending the investigation ” beyond DATE is possible ( LAW CCrP , LAW of the new ORG ) .", "The period of detention “ pending the investigation ” is calculated to DATE when the prosecutor sent the case to the trial court ( LAW CCrP , LAW of the new ORG ) .", "Access to the case - file materials is to be granted DATE before the expiry of the authorised detention period ( LAW CCrP , LAW of the new ORG ) . If the defendant needs more time to study the case file , a judge , on a request by a prosecutor , may grant an extension of detention until such time as the file has been read in full and the case sent for trial ( LAW CCrP , LAW ( CARDINAL ) of the new ORG ) . Under the old ORG , such an extension could not be granted for DATE .", "Under the old ORG , the trial court had the right to remit the case for an “ additional investigation ” if it established that procedural defects existed that could not be remedied at the trial . In such cases the defendant 's detention was again classified as “ pending the investigation ” and the relevant time - limit continued to apply . If , however , the case was remitted for an additional investigation , but the investigators had already used up all the time authorised for detention “ pending the investigation ” , a supervising prosecutor could nevertheless extend the detention period for DATE starting from the date he received the case . Subsequent extensions could only be granted if the detention “ pending the investigation ” had not exceeded DATE ( Article CARDINAL ) .", "From the date the prosecutor forwards the case to the trial court , the defendant 's detention is “ before the court ” ( or “ during the trial ” ) .", "Before DATE the old ORG set no time - limit for detention “ during the trial ” . On DATE a new LAW was inserted which established that the period of detention “ during the trial ” could not generally exceed DATE from the date the court received the file . However , if there was evidence to show that the defendant 's release might impede a thorough , complete and objective examination of the case , a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than DATE . These provisions did not apply to defendants charged with a particularly serious criminal offence .", "The new ORG establishes that the term of detention “ during the trial ” is calculated from the date the court received the file to the date the judgment is given . The period of detention “ during the trial ” may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .", "Under the old ORG , the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor , and any subsequent extension order , before a court . The judge was required to review the lawfulness of and justification for a detention or extension order DATE after receipt of the relevant papers . The review was to be conducted in camera in the presence of a prosecutor and the detainee 's counsel or representative . The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will . The judge could either dismiss the challenge or revoke the pre - trial detention and order the detainee 's release ( LAW ) .", "An appeal to a higher court lay against the judge 's decision . It had to be examined within the same time - limit as appeals against a judgment on the merits ( see paragraph CARDINAL below ) ( Article CARDINAL in fine ) .", "NORP Under the new CCrP , an appeal may be lodged with a higher court within DATE against a judicial decision ordering or extending detention on remand . The appeal court must decide the appeal within DATE of its receipt ( LAW ) .", "Upon receipt of the case file , the judge must determine , in particular , whether the defendant should remain in custody or be released pending trial ( Articles CARDINAL § CARDINAL and CARDINAL of the old ORG , ORG ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) of the new ORG ) and rule on any application by the defendant for release ( LAW CCrP ) . If the application was refused , a fresh application could be made once the trial had commenced ( LAW CCrP ) .", "At any time during the trial the court may order , vary or revoke any preventive measure , including detention ( LAW CCrP , LAW of the new ORG ) . Any such decision must be given in the deliberations room and signed by all the judges of the bench ( LAW ORG , LAW ) .", "An appeal against such a decision lies to the higher court . It must be lodged within DATE and examined within the same time - limit as an appeal against the judgment on the merits ( Article CARDINAL of the old CCrP , LAW of the new CCrP – see paragraph CARDINAL below ) .", "Under the old ORG , within DATE of receipt of the case file ( if the defendant was in custody ) , the judge was required either : ( CARDINAL ) to fix the trial date ; ( CARDINAL ) to return the case for an additional investigation ; ( CARDINAL ) to stay or discontinue the proceedings ; or ( CARDINAL ) to refer the case to a court with jurisdiction to hear it ( Article CARDINAL ) . The new ORG empowers the judge , within the same time - limit , ( CARDINAL ) to refer the case to a competent court ; ( CARDINAL ) to fix a date for a preliminary hearing ( предварительное слушание ) ; or ( CARDINAL ) to fix a date for trial ( LAW ) . The trial must begin DATE after the judge has fixed the trial date ( LAW CCrP , LAW ) . There are no restrictions on fixing the date of a preliminary hearing .", "The duration of the trial is not limited .", "Under the old ORG , the appeal court was required to examine an appeal against the first - instance judgment within DATE of its receipt . In exceptional circumstances or in complex cases or in proceedings before ORG this time - limit could be extended by DATE ( Article CARDINAL ) . No further extensions were possible .", "The new ORG establishes that the appeal court must start the examination of the appeal DATE after its receipt ( Article CARDINAL ) .", "The old CCrP provided that hearings in first - instance courts dealing with criminal cases were , subject to certain exceptions , to be conducted by a single professional judge or by CARDINAL professional and CARDINAL lay judges . In their judicial capacity , lay judges enjoyed the same rights as the professional judge ( DATE ) .", "DATE . The new ORG does not provide for the participation of lay judges in the administration of justice in criminal matters . It provides that serious crimes should be dealt with by a single professional judge or by CARDINAL professional judges provided that the accused has submitted such a request prior to the scheduling of a trial hearing ( LAW ( CARDINAL ) ) .", "It further provides that the composition of the court examining the case should remain unchanged throughout the trial ( LAW ) .", "The Federal Law enacting the new CCrP ( Law no . CARDINAL of DATE ) provides as follows :", "Section CARDINAL.CARDINAL provides that LAW on ORG of ORG is ineffective as of DATE .", "Section CARDINAL provides that LAW ( CARDINAL ) of LAW , in so far as it concerns the examination of serious crimes by CARDINAL professional judges , is effective as of DATE . Before that date serious crimes were to be dealt with by a single professional judge or by CARDINAL professional and CARDINAL lay judges if an accused filed such a request prior to the scheduling of a trial hearing .", "Section CARDINAL of ORG no . CARDINALFZ of DATE ) provides that detainees should be given free food sufficient to maintain them in good health according to the standards established by the Government of GPE . Section CARDINAL provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with an individual sleeping place and given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell .", "On DATE ORG adopted the Rules on food supplies for convicts and persons detained in remand centres . According to Annex no . CARDINAL to the Rules , a daily dry ration ( bread , tinned beef or fish , sugar , tea and salt ) is provided to the following categories of persons : convicts on their way to a prison , a remand centre or colony ; persons released from custody on the way to their place of residence ; persons for the duration of their stay in patient care institutions ; and convicted juveniles . The Rules were amended in DATE and repealed in DATE .", "On DATE ORG adopted the Rules on supplies of dry rations , according to which persons suspected or accused of criminal offences should be supplied with a dry ration ( bread , precooked first and second courses , sugar , tea and tableware ) during their presence at a courthouse . Detainees should be supplied with hot water with which to consume the ration .", "ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited GPE from DATE . The section of its ORG to ORG ( ORG ( DATE ) CARDINAL ) dealing with the conditions of detention in temporary holding facilities and remand establishments and the complaints procedure read as follows :", "“ b. temporary holding facilities for criminal suspects ( ORG )", "According to LAW establishing the internal rules of ORG temporary holding facilities for suspects and accused persons , the living space per person should be QUANTITY m. It is also provided in these regulations that detained persons should be supplied with mattresses and bedding , soap , toilet paper , newspapers , games , food , etc . Further , the regulations make provision for outdoor exercise of TIME per day .", "The actual conditions of detention in the ORG establishments visited in DATE varied considerably .", "...", "It should be stressed at the outset that the ORG was pleased to note the progress being made on an issue of great concern for the NORP penitentiary system : overcrowding .", "When the ORG first visited GPE in DATE , overcrowding was identified as the most important and urgent challenge facing the prison system . At DATE visit , the delegation was informed that the remand prison population had decreased by CARDINAL since DATE . An example of that trend was GPE no . CARDINAL in GPE , which had registered a PERCENT decrease in the remand prison population over DATE .", "...", "The ORG welcomes the measures taken in DATE by the NORP authorities to address the problem of overcrowding , including instructions issued by ORG , aimed at a more selective use of the preventive measure of remand in custody . Nevertheless , the information gathered by the ORG 's delegation shows that much remains to be done . In particular , overcrowding is still rampant and regime activities are underdeveloped . In this respect , the ORG reiterates the recommendations made in its previous reports ( cf . paragraphs CARDINAL and CARDINAL of the report on the DATE visit , ORG ( CARDINAL ) CARDINAL ; paragraphs CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ; paragraph CARDINAL of the report on the DATE visit , ORG ( DATE ) CARDINAL ) .", "...", "As during previous visits , many prisoners expressed scepticism about the operation of the complaints procedure . In particular , the view was expressed that it was not possible to complain in a confidential manner to an outside authority . In fact , all complaints , regardless of the addressee , were registered by staff in a special book which also contained references to the nature of the complaint . At Colony no . CARDINAL , the supervising prosecutor indicated that , during his inspections , he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private ' because they know that all complaints usually pass through the colony 's administration ' .", "In the light of the above , the ORG reiterates its recommendation that the NORP authorities review the application of complaints procedures , with a view to ensuring that they are operating effectively . If necessary , the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis . ”" ]

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

[ "5-3", "5-4", "6-1" ]

[]

[ "3", "5" ]

[ "5-1" ]

[]

[ "The applicant , Mr FAC , is an NORP national who was born in DATE , and is currently detained in prison in GPE . He was represented before the Court by PERSON , a lawyer practising in GPE .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "On DATE the ORG ( GPE ) issued an international warrant for the arrest of the applicant on suspicion of having committed the offences of forcible rape , corporal injury to a co - habitant , and false imprisonment by violence , as defined in sections CARDINAL ) , CARDINAL ) and CARDINAL of GPE and punishable by respectively CARDINAL , DATE imprisonment . An investigation by ORG had revealed in particular that on DATE the applicant drank QUANTITY of wine , became violent with his live - in girlfriend , kicked her chest fracturing her ribs before dragging her to the bedroom , where he bound her wrists to her ankles with plastic straps and raped her . A short time later he removed the straps and raped her again .", "On DATE the applicant was arrested at the GPE airport . On DATE he was heard before ORG ( Amtsgericht ) and remanded in custody pending extradition proceedings .", "On DATE ORG of ORG requested the applicant 's provisional arrest . On DATE the ORG ( Oberlandesgericht ) ordered the applicant 's detention pending a ruling on his extradition .", "On DATE the Government of GPE requested the applicant 's extradition under the terms of LAW between GPE and GPE of DATE .", "ORG ordered the applicant 's continued detention with a view to extradition on DATE .", "At a hearing held on DATE before ORG , the applicant , assisted by a NORP and an NORP lawyer , indicated his refusal to be extradited .", "On DATE the ORG declared the applicant 's extradition admissible . It considered that the evidence furnished in support of the request for the applicant 's extradition was sufficient to give rise to a reasonable suspicion and that in the absence of any exceptional circumstances it was not necessary to examine this question more in depth . ORG held that it was not for it to determine the question of the applicant 's guilt in respect of the charges brought against him in GPE , but only to examine whether the formal extradition requirements had been fulfilled . It noted that the applicant was charged with offences which were punishable under the laws of both Contracting Parties by deprivation of liberty for a maximum period exceeding DATE . ORG did not consider it necessary to take into account the applicant 's allegation that , if extradited to GPE , there was a serious likelihood that he would be given a life sentence , since , according to the relevant provisions of LAW accompanying the extradition request , the maximum sentence possible did not exceed DATE imprisonment .", "The applicant applied for judicial review on DATE .", "On DATE the ORG confirmed its previous decision . It found that the applicant 's extradition was admissible , even if , at worst , the charges brought against him would be qualified as CARDINAL offences of rape with the aggravated circumstances of tying a person up and inflicting corporal injury and the applicant be sentenced to life imprisonment pursuant to section CARDINAL.CARDINAL(a ) , ( c)(CARDINAL ) , ( e)(CARDINAL ) and ( CARDINAL ) of ORG . According to ORG , an extradition could only be objected to , if a life sentence as such would be contrary to the rule of law and inadequate under all possible aspects . Rape under section CARDINAL ( e)(CARDINAL ) and ( CARDINAL ) of ORG constituted severe wrongdoing and was punishable in GPE by DATE imprisonment , pursuant to section QUANTITY no . CARDINAL ( a ) of GPE . Moreover , a life sentence did not mean that the applicant would have no possibility of early release . Under section CARDINAL.CARDINAL(a ) and ( j ) of GPE Code a convicted person was eligible for release on parole after having served DATE imprisonment . This period could be reduced by PERCENT on account of good conduct .", "The applicant requested again that the warrant of arrest pending extradition be set aside and his extradition declared inadmissible on DATE .", "On DATE ORG refused to reverse its decision of DATE . It noted that the warrant of arrest issued by ORG on DATE and the indictment of DATE charged the applicant with CARDINAL count of forcible rape , pursuant to Section CARDINAL(a)(CARDINAL ) of ORG ( maximum possible sentence up to DATE imprisonment ) . According to ORG , it could not be inferred from these charges that there would be a sufficient legal basis for imposing CARDINAL life sentences . The investigations carried out in GPE gave no reason to assume that the applicant had inflicted bodily injury “ in the commission ” of the sexual offences , as required by LAW ( e ) ( CARDINAL ) of ORG . Furthermore , in respect of the second sexual offence , no aggravating circumstance had been established , since the victim had not any longer been tied up . ORG concluded that no substantial grounds had been shown for believing that the applicant , if extradited , would be exposed , as alleged , to CARDINAL consecutive life sentences , amounting to DATE and DATE imprisonment .", "On DATE ORG refused to admit the applicant 's constitutional complaint for adjudication .", "Article CARDINAL.CARDINALa of LAW between GPE and GPE of DATE as amended on DATE allows the verification of the facts on which the extradition claim is based , the ordinary courts are , however , not obliged to make use of this possibility .", "Section CARDINAL § CARDINAL of the German Law on International Judicial Assistance in Criminal Matters ( Gesetz über die internationale Rechtshilfe in PERSON ) provides that , if exceptional circumstances require to examine the question of the existence of a reasonable suspicion , facts must be furnished which are sufficient to support the conclusion that there was a reasonable suspicion that an offence has been committed .", "The relevant provisions of LAW of GPE provide as follows :", "Section CARDINAL", "“ False imprisonment is the unlawful violation of the personal liberty of another . ”", "Section CARDINAL . ( a )", "“ False imprisonment is punishable by a fine not exceeding MONEY ( $ MONEY ) , or by imprisonment in the county jail for not DATE , or by both that fine and imprisonment . If the false imprisonment be effected by violence , menace , fraud , or deceit , it shall be punishable by imprisonment in the state prison . ”", "Section CARDINAL . ( a )", "“ Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator , under any of the following circumstances :", "...", "ORG ( CARDINAL ) Where it is accomplished against a person 's will by means of force , violence , duress , menace , or fear of immediate and unlawful bodily injury on the person or another . ”", "Section CARDINAL . ( a )", "“ Any person who willfully inflicts upon a person who is his or her spouse , former spouse , cohabitant , former cohabitant , or the mother or father of his or her child , corporal injury resulting in a traumatic condition , is guilty of a felony , and upon conviction thereof shall be punished by imprisonment in the state prison for CARDINAL , CARDINAL , or DATE , or in a county jail for not DATE , or by a fine of MONEY ( $ MONEY ) or by both that fine and imprisonment . ”", "Section CARDINAL.CARDINAL", "“ ( a ) A person who is convicted of an offense specified in subdivision ( c ) under one or more of the circumstances specified in subdivision ( d ) or under CARDINAL or more of the circumstances specified in subdivision ( e ) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for DATE except as provided in subdivision ( j ) .", "( b ) Except as provided in subdivision ( a ) , a person who is convicted of an offense specified in subdivision ( c ) under one of the circumstances specified in subdivision ( e ) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for DATE except as provided in subdivision ( j ) .", "( c ) This section shall apply to any of the following offenses :", "ORG ( CARDINAL ) A violation of paragraph ( CARDINAL ) of subdivision ( a ) of Section CARDINAL .", "...", "e ) The following circumstances shall apply to the offenses specified in subdivision ( c ) :", "ORG ...", "( CARDINAL ) The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of LAW .", "...", "( CARDINAL ) The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense .", "ORG ( j ) Article CARDINAL ( commencing with Section CARDINAL ) of LAW CARDINAL of Part CARDINAL shall apply to reduce the minimum term of DATE in the state prison imposed pursuant to subdivision ( a ) or DATE in the state prison imposed pursuant to subdivision ( b ) . However , in no case shall the minimum term of DATE be reduced by PERCENT for credits granted pursuant to LAW , DATE , or any other law providing for conduct credit reduction . In no case shall any person who is punished under this section be released on parole prior to serving CARDINAL percent of the minimum term of DATE in the state prison . ”", "Section CARDINAL.CARDINAL", "“ ( a ) This section applies to the following felonies :", "...", "( CARDINAL) Section CARDINAL or CARDINAL ( rape ) . ”" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON PERSON PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE a bank filed a bankruptcy petition before ORG ( PERSON tingsrätt ) against the limited company PERSON ORG ( “ the company ” ) . At the time , all shares in the company were owned by the applicant . The court found that the company had no duly appointed representative and served the petition and summons to the bankruptcy hearing on the company ’s registered auditor ( registrerad revisor ) . At the hearing , held on DATE , the auditor appeared but no representative for the company . ORG found that the mentioned documents had been legally served on the company through its auditor and that , therefore , there existed no impediment to proceeding with the hearing . In a decision DATE , ORG declared the company bankrupt and appointed an official receiver ( konkursförvaltare ) for the bankruptcy estate .", "The company appealed against the decision to ORG ( PERSON hovrätt ) , requesting in the first place that the declaration of bankruptcy be quashed and the case be remitted back to ORG for re - trial or , in the alternative , that the decision be reversed . It submitted , inter alia , that it was not insolvent and that the summons to appear before ORG had not been correctly served . In the latter respect , it argued that it had been incorrect to serve the summons on the auditor since the company had a board of directors ( styrelse ) at the time and since the auditor had been dismissed from his mandate .", "In a decision of DATE ORG found , inter alia , that no board of directors had been registered by the company with the register of limited companies ( Aktiebolagsregistret ) . Similarly , the register had not shown that the auditor had been divested of his mandate . ORG found that the summons to appear before ORG had been correctly served on the company and that it had not substantiated that it was solvent . It therefore upheld the lower court ’s decision in full .", "In DATE the official receiver issued a formal report concerning the bankruptcy and the estate ( förvaltarberättelse ) . According to the receiver , the company had been insolvent since DATE . Moreover , it was noted in the report that most of the company ’s assets had been transferred shortly before the bankruptcy decision without accounting for and , seemingly , without receiving any compensation in return , that the company had lacked DATE reports and other complete bookkeeping , that there had been no ongoing activity in the company at the time of the bankruptcy decision and that , at the same point in time , the company had had MONEY ( SEK ) in assets and MONEY CARDINAL in debts . During the bankruptcy period , the official receiver sold the bankruptcy estate ’s assets and made prepayments to its creditors , including the creditor bank .", "The company appealed against ORG decision to ORG ( ORG domstolen ) before which it maintained its claims . ORG granted leave to appeal and , in a decision of DATE ( ORG DATE p. CARDINAL ) , found that it was not possible to serve a summons on a limited company without an appointed board of directors through its auditor . As , therefore , the summons to the bankruptcy hearing had not been correctly served on the company , ORG quashed the declaration of bankruptcy and remitted the case back to ORG for re - trial .", "Following the decision of ORG , the company transferred its possible right to damages from the ORG due to the erroneous bankruptcy decision to a third party .", "On DATE new bankruptcy proceedings , at which the company was represented , were held before ORG . In these proceedings , the creditor bank referred to the mentioned prepayments from the bankruptcy estate and submitted that , out of its original claim , MONEY remained unpaid . The company ’s representative declared that he personally guaranteed the alleged remaining debt . On DATE the court rejected the bankruptcy petition on the grounds , inter alia , that the present claim concerned only a small amount and that it had been guaranteed by the representative . The court further obliged the bank to reimburse the company ’s legal costs and decided that its bankruptcy costs amounting to SEK CARDINAL,CARDINAL should be paid by the ORG .", "The applicant sued the ORG before ORG , requesting the court to declare that the ORG was liable for damages incurred on the company by ORG and ORG erroneous declaration of bankruptcy . The applicant claimed that the ORG was obliged to pay compensation , firstly , in accordance with LAW , LAW ( ORG , CARDINAL:CARDINAL ) , since ORG and ORG were guilty of wrongful acts or omissions in connection with the exercise of public authority . In the alternative , he requested that ORG should create a general legal principle ( rättsgrundsats ) giving a right to compensation in cases like the instant one . The applicant referred to , inter alia , the LAW and its protection of property rights .", "The ORG disputed that there had been any wrongful acts or omissions in connection with the exercise of public authority which had given rise to an obligation for the ORG to pay compensation . It stated that the question of how to serve summonses on limited companies in cases such as the one at issue had been made clear only by the decision of ORG in DATE . There existed neither any previous case - law on the matter , nor any comments in the preparatory works that could be construed in a way that precluded the possibility of serving a summons on a limited company through its auditor . Finally , there was no guidance to be found in the doctrine . Therefore , the ORG argued , the decisions by the lower courts had not constituted a clear breach of the law , such as could be construed prior to ORG decision .", "In a judgment of CARDINAL DATE , ORG rejected the applicant ’s claims . It stated that now , after its decision in the case ORG DATE p. CARDINAL , it was clear that a summons could not be served on a limited company through its auditor and that , consequently , the lower court ’s decisions had been wrong . However , it observed that , when the ORG was held liable for alleged errors concerning legal and evidential issues , a flawed assessment by a court was not sufficient for liability for damages ; only manifestly erroneous assessments could constitute grounds for liability . In this respect , ORG found that the correct interpretation of the relevant provision concerning the serving had not been obvious and that no such wrongful act or omission as to cause liability had been committed . ORG also rejected the applicant ’s alternative request .", "The company was declared bankrupt on its own request on DATE .", "References in this section are made to LAW ( ORG , ORG ) , unless otherwise indicated .", "A debtor who is insolvent , that is who can not pay his debts as they become due and whose inability in this regard is not merely temporary , shall be declared bankrupt at the request of the debtor himself or by a creditor ( LAW , section CARDINAL ) . By means of bankruptcy , all creditors collectively and compulsorily take the total assets of an insolvent debtor for payment of their claims . During bankruptcy , the bankruptcy estate takes care of the debtor ’s assets on behalf of the creditors ( LAW , section CARDINAL ) .", "The administration of a bankruptcy estate is managed by CARDINAL or more official receivers appointed by ORG ( Chapter CARDINAL , section CARDINAL , and LAW , section CARDINAL ) .", "Bankruptcy decisions are immediately enforceable ( LAW , section CARDINAL ) . In the event of a higher court quashing the bankruptcy decision , all conducted administrative measures are to be interrupted forthwith and the case referred back to ORG for concluding measures .", "In the case where a higher court quashes the bankruptcy decision , the assets of the estate are restored to the debtor to the extent that they are not required for the defrayal of the bankruptcy costs and other costs that the estate has incurred ( LAW , section CARDINAL ) .", "The latter provision implies that the estate is liable to pay the bankruptcy costs even if a declaration of bankruptcy is later quashed . However , by decision of ORG of DATE ( NJA DATE , p. CARDINAL ) , it was established that the ORG may be held liable to pay the bankruptcy costs when the declaration of bankruptcy is quashed due to a grave procedural error . The case concerned a bankruptcy decision that was quashed due to ORG having summoned the debtor to its hearing in an incorrect manner .", "It follows from LAW , section CARDINAL , of LAW ( Skadeståndslagen , ORG ) that the ORG is liable to pay compensation , inter alia , for financial loss caused by a wrongful act or omission in connection with the exercise of public authority .", "ORG has in several judgments clarified that it is not sufficient for liability for damages that a court ’s assessment of a legal issue is erroneous . Only manifestly erroneous assessments can be considered as wrongful acts or omissions within the meaning of the said provision ( see , for example , ORG DATE p. CARDINAL , DATE p. CARDINAL and NJA DATE p. CARDINAL ) ." ]

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

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant , who was serving as a police officer in ORG , filed a request for early retirement . According to him , he did so against his will under threat of dismissal for disciplinary reasons . He learned of this threat from colleagues , who had heard it from their superior . The pretext for the dismissal was said to be a disciplinary penalty which had been imposed on the applicant on CARDINAL DATE for having allegedly failed to act with the requisite diligence when handling an incident involving a helicopter .", "Following the applicant ’s request for early retirement , and pursuant to section CARDINAL ) of ORG ( “ the DATE Act ” : see paragraph CARDINAL below ) , the Minister of ORG decided to terminate the applicant ’s employment . The order for termination was dated DATE .", "The order was served on the applicant on DATE . On receipt of the order the applicant explicitly stated that he had filed his request for early retirement against his will and under threat of a disciplinary dismissal .", "Under section CARDINAL of LAW in conjunction with section CARDINAL ) of LAW DATE ( in force until DATE ) , the applicant had the right to seek judicial review of the order for termination of his employment by ORG . He exercised that right on DATE , alleging that there had been procedural defects in the decision to terminate his employment and that there had been no valid request for early retirement ( a key condition for termination of employment ) , as he had filed his request under duress . He sought to rely on the testimony of CARDINAL witnesses who , he maintained , would give evidence that he had not intended to retire and had only filed his request for early retirement because of the threat of dismissal .", "On DATE , during the first hearing in the case before a CARDINAL - member panel of ORG , the applicant ’s lawyer reiterated the request to call the CARDINAL witnesses . The Minister of Internal Affairs’ counsel objected , arguing that the applicant could simply have withdrawn his request for early retirement . The prosecutor , who , as of right , participated in the appeal , considered that the witnesses should be heard in order to allow the applicant to prove his claim . Nevertheless , ORG refused the applicant ’s request to call the witnesses without giving reasons . TIME merely stated that the court had decided not to grant the request .", "In a judgment of DATE the CARDINAL - member panel quashed the termination order , finding that , in issuing the order while the applicant was on sick leave , the Minister had breached section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) .", "NORP The Minister of ORG filed a cassation appeal against the decision of the CARDINAL - member panel . In his written pleadings in reply the applicant ’s lawyer again reiterated his request to have the witnesses examined .", "In a final judgment of DATE a CARDINAL - member panel of ORG quashed the earlier judgment of the threemember panel and upheld the order for termination of the applicant ’s employment , finding that , although the order had been signed on DATE ( when he was on sick leave ) , it had been served on him on DATE ( when he was back at work ) . Therefore , there had been no breach of section CARDINAL(CARDINAL ) of LAW .", "Neither the CARDINAL - member nor CARDINAL - member panel of ORG judgments considered the applicant ’s allegation that he had filed his request for early retirement under duress or gave reasons for the decision not to call the applicant ’s witnesses .", "Section CARDINAL(CARDINAL)(CARDINAL ) of LAW , in force until DATE , provided that the employment of officers in ORG could be terminated by order of the Minister in cases where they met all the requirements for receiving an old - age pension and upon their request for early retirement . The order for termination was amenable to judicial review by ORG ( section CARDINAL of LAW in conjunction with section CARDINAL ) of LAW DATE , in force until DATE ) . Section CARDINAL ) of the DATE Act provided that the employment of officers could not be terminated whilst on leave except in accordance with the provisions of section CARDINAL of the Act .", "Section CARDINAL(CARDINAL ) of LAW DATE provided that an administrative decision could only be issued after the administrative authority considered any explanations , representations or objections made by the interested party .", "At the material time , proceedings before ORG were regulated by ORG . LAW stated that in cassation proceedings ( which included appeals from CARDINAL - member panels to CARDINAL - member panels of ORG ) only documentary evidence was admissible . Section CARDINAL(CARDINAL ) provided that , in such proceedings , ORG could uphold , quash ( wholly or partly ) or vary the judgment appealed against . Section CARDINAL(CARDINAL ) provided that , if ORG quashed the judgment for serious breaches of the rules of procedure , it had to remit the case for reconsideration by a differently constituted panel . In other cases , the case was to be decided on the merits ." ]

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[ "The applicant is a NORP national , born in DATE and detained in PERSON , GPE .", "He is represented before the ORG by PERSON , a lawyer practising in at ORG , GPE , GPE .", "A.", "On DATE , at ORG , the applicant was convicted of being knowingly concerned in the fraudulent evasion of the prohibition or restriction on the importation of a Class A drug namely QUANTITY of cocaine . The offence was contrary to section CARDINAL ( CARDINAL ) of ORG . The applicant was sentenced to DATE imprisonment . The applicant 's co - accused PERSON ( “ Ndandaye ” ) , also known as PERSON , pleaded guilty to the same charge and was sentenced to DATE imprisonment .", "Fact of the case against the applicant", "On DATE the applicant and ORG arrived at FAC airport on a flight from GPE via GPE . NORP customs officers were looking out for them having been notified by NORP customs officers that they had found cocaine in ORG 's bag . ORG was stopped , questioned , but allowed to leave the customs hall . He was arrested getting into a taxi outside the terminal . His brown hold - all type bag contained QUANTITY of cocaine . The applicant was arrested by customs officers after he had collected his own luggage . The applicant was searched and he was interviewed CARDINAL times .", "The first interview took place on DATE . The applicant was cautioned as follows :", "“ You do not have to say anything but it may harm your defence if you do not mention when questioned something you later rely on in court . Anything you do say may be given in evidence . ”", "The interview ended after TIME because the applicant requested legal advice . The following day he was interviewed for TIME and after the caution read the following statement :", "“ I < A.J.D. > wish to make the following statement . I was born on DATE and live at CARDINAL PERSON , PERSON CARDINALHU . I travelled from GPE to GPE on a ORG flight on DATE through to DATE .", "I spent a period of time in GPE before travelling to GPE . I left GPE on a ORG flight on DATE returning via GPE to GPE on DATE . I travelled to and from GPE using my own genuine passport and the personal details contained therein are true and accurate .", "I have no knowledge of the importation of crack cocaine by any other person and have not knowingly been involved in such importation myself . My own knowledge on this matter is as a result of information given to me in private consultation with my solicitor . I am not willing to make any further comment at this time . ”", "The interviewing officers then asked the applicant a number of questions to which he replied “ no comment ” . The applicant was interviewed for a third time DATE for TIME and gave “ no comment ” answers .", "The prosecution alleged that ORG was a courier and that the applicant was a minder . In this respect it was alleged the offence was a joint enterprise . The prosecution adduced evidence from Miss PERSON , a travel agent , that on DATE the applicant telephoned her to book a seat on a flight to GPE and she told him that it would cost £ MONEY . Shortly after this the applicant arrived at the shop and gave her £ CARDINAL . The applicant stated he wanted to make a booking for a Mr. PERSON ( ORG ) . She issued extra return tickets in the name of Mr. PERSON . They did not in fact return on this flight but on a ORG flight .", "The applicant gave evidence that he had been introduced to a person called PERSON ( ie ORG ) through a friend and that he himself was in the jewellery and car business . The purpose of the visit to GPE was to buy gold from someone PERSON knew who sold it cheaply . The applicant did not pay for ORG 's ticket ; he was given £ MONEY by ORG for that . ORG told him that he did not need to take cash with him as payment could be made through his GPE bank account . They went to GPE but no real deal was struck because the friend was not willing to sell gold except for cash . They went on to GPE and ORG asked the applicant to stay for DATE . ORG then presented the applicant with a new return ticket to fly back with ORG DATE . The first time that the applicant had seen ORG carrying the brown holdall was in GPE . The scales found in the applicant 's possession were for weighing gold and he had borrowed them as his own scales were not of the right type .", "The applicant answered all questions asked of him at trial . He said the reason that he had failed to account for certain details in interview was that he was advised by his lawyer to make a statement and then to answer “ no comment ” . The applicant sought to give evidence as to what advice he had received from his solicitor and the instructions he had given . However the judge ruled that such evidence was inadmissible on the grounds of hearsay and/or relevance .", "The trial judge 's summing up", "The judge reminded the jury of the terms of the caution , the fact that the appellant was interviewed CARDINAL times , the topics which were raised in interview , the “ no comment ” answers and the fact that he made a short statement in writing . The judge stated :", "“ The law is that you may draw inferences as you think proper from a failure to mention facts at the time . You do not have to hold it against him . It is for you to decide whether it is proper to do so . Failure to mention such facts at that time can not on its own prove guilt . But , depending on the circumstances , you may hold that failure against him when deciding if he is guilty , that is take it into account as some additional support in the prosecution case . It is for you to decide whether it is fair to do so .", "The < applicant > says that he was advised to make the statement and then to answer “ no comment ” to all the questions . Advice had come from the legal representative or solicitor who was present with him . You will ask yourselves , members of the jury , why , if the answers which would have been given and have been given in evidence would have pointed to the innocence of the < applicant > , he would have been advised not to answer questions in interview , or why he chose not to . A solicitor 's advice not to answer questions does not prevent you from drawing such inferences as I have already directed that you may draw . It is a matter entirely for you . ”", "On DATE the jury convicted the applicant by a unanimous verdict .", "The appeal", "Originally the applicant applied for leave to appeal against conviction and sentence on personally drafted grounds . His application was refused by a single judge . His renewed application to the full ORG was adjourned on DATE . The adjourned hearing took place with the assistance of Counsel on DATE .", "The applicant 's first ground of appeal was that as the inference of post interview fabrication by the applicant was in issue , evidence of what was said to the solicitor pre interview was potentially probative in rebuttal of such inference and thus relevant and admissible . ORG agreed stating ' the trial judge should not have indicated an unwillingness to allow the evidence to be adduced ' . ORG therefore agreed in the interests of justice to allow the evidence to be adduced .", "The applicant , giving evidence , told ORG that the discussion with his solicitor lasted TIME . He told the solicitor the whole story in accordance with what he later said at trial . The solicitor told him that he did not see anything which connected him with the crime . The solicitor advised the applicant to make a basic statement and to offer “ no comment ” . He did not think the applicant would ever be charged .", "In its judgment of DATE , ORG considered it crucial that the solicitor was not called by the applicant to give evidence at the appeal . It found that it was highly unlikely that the solicitor would have given the applicant the advice he claimed . It concluded that although the judge fell into error in excluding the evidence , having heard the evidence it was clear that it would not have materially advanced the defence case at trial . The applicant had not therefore been unduly prejudiced by its exclusion . As regards the applicant 's second ground of appeal which concerned the manner in which the trial judge dealt with the “ no comment ” answers in interview in his summing up , ORG accepted that there was some shortcoming in the summing up in that the judge did not direct the jury that they had to be satisfied that the prosecution had established a case to answer before they could draw an adverse inference from the applicant 's failure to answer questions at interview . It was not necessary to do so but desirable . It was not enough to flaw the conviction .", "On DATE , ORG refused leave to ORG . On DATE ORG refused leave to appeal .", "B. Relevant domestic law and practice", "Section CARDINAL and LAW of ORG LAW DATE provide so far as is relevant :", "“ DATE . ( 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 , sub - section ( CARDINAL ) applies .", "( CARDINAL ) Where this sub - section applies -", "( c ) the court , in determining whether there is a case to answer ; and", "( d ) the court or jury , in determining whether the accused is guilty of offence charged ,", "may draw inferences from the failure as appear proper ” ." ]

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[ "The applicant , Mr PERSON , is an 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 married PERSON In DATE their daughter PERSON was born . On an unspecified date in DATE the applicant moved out of the family home .", "On DATE the applicant applied to ORG ( Sąd Rejonowy ) for a residence order in respect of P .. Consequently , access proceedings were instituted .", "In DATE the applicant filed a petition for divorce with ORG .", "On DATE the applicant requested ORG to make an interim order on access arrangements during the custody and access proceedings . On DATE he also requested that PERSON be divested of parental rights .", "On DATE the applicant was awarded interim access to the child by ORG . This allowed him to visit the child on DATE . PERSON refused to comply with that order .", "On DATE the applicant applied for a court order prohibiting his wife from removing the child from GPE without his consent . On DATE the court refused his request .", "On DATE he requested ORG to change the access arrangements determined on DATE .", "On DATE the ORG ( PERSON ) dissolved the applicant ’s marriage . The court awarded parental rights to both parents . It also limited the applicant in the exercise of his rights : it ordered that ORG ’s permanent residence be with her mother , but allowed the applicant to co - decide about the child ’s education and health . The court did not specify access arrangements . On DATE the applicant appealed against the divorce .", "On DATE PERSON instituted proceedings in which she requested that the applicant be divested of his parental rights on the ground that he had been aggressive towards her .", "On DATE the custody and access case was joined with the case instituted by the applicant ’s wife .", "In DATE PERSON left GPE together with the child and settled in GPE . She did not inform the applicant about it and did not give their new address in GPE .", "In DATE the court gave GPE DATE in which to ensure compliance with the access arrangements provided for by the order of DATE . In DATE and in DATE the applicant again amended his application concerning the access arrangements and requested that the court issue a new interim decision to replace that of DATE .", "On DATE ORG issued a decision allowing the applicant to see P. every DATE for TIME at FAC in GPE in her mother ’s presence . The mother appealed .", "On DATE the ORG quashed this decision and remitted the case .", "In DATE PERSON married a NORP citizen , changed her name to PERSON and moved to GPE with P .. She did not inform the applicant of her whereabouts . The applicant subsequently established their address with the assistance of the NORP consulate in GPE .", "On DATE the mother submitted that she would agree to report with the child at ORG for an interview if she was granted appropriate protection against the applicant ’s aggressive behaviour .", "Following the remittal , on DATE ORG issued its decision . The court dismissed ORG motion that the applicant be divested of his parental rights , and the applicant ’s motion that the child reside permanently with him . The court found that NORP was living with her new husband , a NORP citizen , his parents and PERSON in a house with a garden . It had been established by NORP social assistance authorities that PERSON got on well with her new environment and called her stepfather “ dad ” . P was happy , healthy and well cared for in her mother ’s house . In DATE PERSON gave birth to another child . Conversely , the applicant was unemployed , lost his right to social security assistance and lived in his parent ’s house . He had been also paying maintenance for another child – a DATE son . The court considered that P. had every chance of obtaining an upbringing in a functional restructured family composed of her mother , her step - father and CARDINAL - sister . She had a sense of security and stability in her mother ’s house and it had been in the child ’s interest to stay there . The court did not find any reasons to divest ORG of her parental rights . The fact that she had left GPE without informing the applicant thereof had certainly been an abuse of her parental rights , but could not serve as a ground on which to divest her of her rights in respect of P. ’s custody . As to the applicant , there were also no grounds on which to divest him of his parental rights .", "The applicant lodged an appeal with ORG . He submitted that since DATE the mother had made it impossible for him to have any contacts with P.", "On DATE the ORG upheld this decision . The court repeated the arguments of the first - instance court .", "On DATE the applicant instituted new proceedings in which he again requested ORG to establish access arrangements . On DATE he lodged a further motion asking that full custody rights be restored to him .", "On DATE ORG dismissed the applicant ’s motion of DATE and refused to award custody to him . The court found , on the basis of new evidence obtained meanwhile from the NORP authorities , that PERSON was well integrated in her new family in GPE . She had no distinct memory of her life with her father before the divorce . Moreover , she received affection from her mother , her mother ’s husband and his family . The spouses cared well for her , providing PERSON with the best conditions for her upbringing . The court accepted ORG testimony that she had not deprived the applicant of effective access to the child as it had been the applicant who had made the contacts difficult due to his aggressive behaviour . The court concluded that removing PERSON from her mother ’s custody , or even establishing a permanent access arrangement with the applicant , would harm the health and development of the child .", "On DATE the applicant appealed against this decision .", "On DATE the ORG upheld the contested decision and dismissed his appeal . It noted that having regard to the child ’s well - being there were no circumstances which would justify a new decision on access arrangements .", "On DATE the ORG lodged a motion on the applicant ’s behalf with ORG to determine access arrangements . It was argued that the question of the applicant ’s access to P. had never been settled except for the interim order of DATE . The child ’s mother had deprived the applicant and the child of any possibility of contact . The applicant was right in emphasising that PERSON had abused her parental rights by removing the child from GPE without the applicant ’s or the court ’s permission or knowledge . That had constituted a violation of the domestic regulations and relevant provisions of international law . The ORG stressed that ORG actions had been clearly unlawful .", "On DATE ORG dismissed the applicant ’s request for an interim access decision allowing him to send letters and presents to P.", "On DATE the ORG established a temporary access arrangement and allowed the applicant to call P. once DATE and to send letters to her . The applicant ’s further appeal against this access arrangement was dismissed by the decision of ORG on DATE .", "On DATE the ORG gave a decision on access arrangements . The child would visit the applicant once DATE and he would be allowed to spend DATE with her during DATE . In addition the child would twice a DATE call the applicant . The applicant was allowed to send letters to his daughter .", "The child ’s mother appealed against this decision", "On DATE the ORG amended the first instance decision . The court considered that there were no grounds on which to accept that the child should have direct contacts with the applicant . P. had been brought up without any contacts with her father and she did not know him . Furthermore , as it appeared from her statements given in the proceedings before the NORP authorities , she had not been interested in having contact with the applicant . The court held that establishing a permanent access arrangement with the applicant could harm the child ’s health and her development . In conclusion , the court allowed the applicant to send letters and gifts to his daughter .", "On DATE and CARDINAL DATE ORG imposed fines on ORG CARDINAL ORG for failure to comply with its order of CARDINAL DATE . On DATE PERSON paid the fine which had been imposed on her on DATE . The enforcement proceedings concerning the second fine were discontinued in DATE .", "On DATE the applicant again requested the court to impose a fine on ORG , alleging that she had prevented him from talking to P. on the phone and that she had refused to accept letters he had sent to P.", "On DATE ORG dismissed his request . The court considered that the applicant had failed to contact the mother in order to obtain her telephone number , and that it was not established that the mother had sent back any applicant ’s letters .", "On DATE , ORG dismissed the applicant ’s appeal against the first - instance decision . The court considered that it had not been confirmed that PERSON had obstructed the applicant ’s attempts to contact his daughter .", "On DATE the ORG in GPE decided to change the divorce judgment insofar as it concerned the custody of P. and granted custody solely to the mother . It considered that the parents were in conflict and that , in any event , the applicant and the child lived far away from each other . The applicant had failed to appeal against this decision .", "ORG PERSON i PERSON ) provides :", "Article CARDINAL § CARDINAL", "“ In a decision on divorce , the court is competent to issue orders as to the care of the parties’ minor children ( ... ) . The court may grant custody right to CARDINAL parent and limit the custody rights of the other CARDINAL . ”", "The Code of Civil Proceedings ( Kodeks Postępowania Cywilnego ) provides :", "Article CARDINAL", "“ The custody court can change its decision if the best interest of the person whom it concerns so require . “", "According to ORG resolution , if a parent who has been obliged by a court decision to respect the other GPE access rights refuses to comply therewith , access decisions are liable to the enforcement proceedings . The provisions of LAW on enforcement of non - pecuniary obligations are applicable to enforcement of court decisions on parental rights or access rights ( resolution of ORG of DATE , III CZP CARDINAL/CARDINAL , OSNCP CARDINAL CARDINAL - CARDINAL ) :", "Article CARDINAL", "“ CARDINAL . If the debtor is obliged to take measures which can not be taken by any other person , the court in whose district the enforcement proceedings were instituted , on the motion of a creditor and after hearing the parties , shall fix the time - limit within which the debtor shall comply with his obligation , on pain of a fine ( ... ) .", "If the debtor fails to comply with this obligation , further time - limits may be fixed and further fines may be imposed by the court . ”", "If the court obliges a parent exercising custody rights to ensure access to a child to the other parent , LAW is applicable to the enforcement of this obligation .", "LAW of DATE provides in so far as relevant .", "Article CARDINAL", "“ An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to ORG in the same way as an application for the return of a child .", "ORG are bound by the obligations of co - operation which are set forth in DATE to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of such rights may be subject . The central Authorities shall take steps to remove , as far as possible , all obstacles to the exercise of such rights . ORG , either directly or through intermediaries , may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject . ”" ]

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[ "The applicant , FAC , is a NORP national , who was born in DATE and lives in PERSON .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "By a judgment delivered on DATE the ORG granted the divorce of the applicant and her husband . The applicant obtained custody of the child born out of wedlock .", "On DATE the applicant sued her former husband before ORG . She claimed that the joint tenancy of the flat in which she had lived together with the defendant be annulled and that she should be declared its exclusive tenant .", "Subsequently the father of the applicant ’s former husband exchanged the flat for a smaller one with another person . On DATE the municipality which owned the flat in which the applicant and her former husband had lived approved of the exchange .", "On DATE the applicant was prevented from entering the flat as the lock had been changed . She called the police who established that the tenancy rights had been transferred to the above person who turned out to be the new partner of the applicant ’s former husband .", "On DATE the applicant complained to ORG that by approving the exchange the municipality had acted unlawfully .", "On DATE the ORG informed the applicant that no action would be taken on her petition . The letter stated that the mayor had not exceeded his powers and that the person with whom the applicant ’s father - in - law had exchanged the flat had acquired tenancy rights in its respect by virtue of an agreement with the municipality concerned dated DATE . The letter further indicated that public prosecutors had no power to examine whether the tenancy of the flat had been transferred to the applicant ’s former husband in accordance with the relevant law as alleged by the applicant . That issue was to be determined , as a preliminary question , by the courts deciding on the applicant ’s action for the joint tenancy to be terminated .", "On DATE the ORG dismissed the applicant ’s action of DATE . The court established , after having heard several witnesses and with reference to the documentary evidence available , that the applicant and her former husband had never formally become tenants of the flat . The judgment stated that the flat had been allocated to the father of the applicant ’s former husband . The joint tenancy of the flat by the applicant and her former husband could not be derived from the fact that they had lived in the flat as they had failed to meet the statutory requirement that they lived in the flat in a common household together with the user to whom the flat had been allocated . ORG further held that the transfer of tenancy to the applicant and her former husband was excluded as the apartment in question had been allocated to her former father - in - law in his capacity of an employee of a public organisation .", "On DATE the applicant appealed and challenged the conclusions reached by the first instance court .", "The applicant also applied to ORG to issue an interim measure prohibiting the new user from purchasing the flat pending the outcome of the proceedings in the applicant ’s above action . On DATE the ORG dismissed the request noting , with reference to the above judgment of DATE , that the applicant had not shown that she had any right in respect of the flat in question . On DATE the applicant filed an appeal against this decision .", "On DATE the applicant challenged ORG judges . She alleged that her former husband , who was a public prosecutor at ORG , knew all ORG judges in PERSON and had friendly relations with several of them . The applicant further argued that ORG judge C. was on friendly terms with her former husband ’s mother as the latter had been the superior of the judge ’s wife .", "On DATE ORG decided that ORG judges to whom the case fell to be examined were not biased . Reference was made to statements by CARDINAL of the judges according to which they did not know the applicant and her former husband . ORG further noted that judge PERSON had stated that he had no professional or other contacts with the applicant ’s former husband and that he had no relationship with the latter or his mother .", "ORG held that the existence of any personal interests or relations in respect of the parties in the proceedings which could affect an objective assessment of the facts of the case by the CARDINAL judges concerned had not been established . In particular , there was no indication that the applicant ’s former husband had any personal contacts with the judges , and the fact that he worked with ORG did not , as such , cast doubts on the impartiality of the judges . Furthermore , it was not shown that judge C. had relations with the mother of her former husband , and the fact that she had been the hierarchical superior of the wife of judge C. related to the past . ORG concluded that the applicant ’s fear concerning the lack of impartiality of the judges was not supported by any objective facts .", "In the meantime , the applicant learned that the new tenant had requested the municipality to sell the flat to her in accordance with the legislation on sale of municipal apartments . The applicant informed the municipality concerned about the proceedings concerning her action and requested that the sale be suspended .", "On DATE the ORG issued an interim measure , at the applicant ’s request , prohibiting ORG from entering the transfer of ownership of the flat in the land registry pending the delivery of a final decision in the applicant ’s action . When delivering this decision ORG apparently was not aware of the fact that ORG had already given leave for the relevant entry to be made in the land registry on DATE . The applicant learned about the transfer of the ownership on DATE .", "On DATE ORG upheld ORG judgment of DATE . The judgment stated that new relevant facts had occurred in that the flat in question had been transferred to another person who had become its owner on DATE . Reference was made to LAW ) of LAW of DATE . Accordingly , the applicant could not claim that she and her former husband had joint tenancy rights in respect of the flat . ORG further noted , with reference to the relevant provisions of LAW , that a party was free to put forward new facts or arguments in his or her appeal and that it was bound to decide on the facts of the case as they existed at the moment of the delivery of judgment .", "On DATE ORG informed the applicant that ORG had not infringed the law by allowing the person who had acquired the flat in question by exchange to be entered as its owner in the land registry . The letter stated that that person had acquired tenancy rights by virtue of an agreement which she had concluded with the municipality which owned the flat on DATE . Subsequently , the municipality agreed to sell the flat to the tenant in accordance with the relevant law and an agreement was concluded to that effect . At the moment of the entry in the land registry of the new owner there existed no restrictions on the transfer of the ownership of the flat . In particular , under the law in force the fact that proceedings in the applicant ’s above action of DATE were pending could not affect the validity of the entry in the land registry . As to the interim measure issued by ORG on DATE , the public prosecutor noted that the applicant had expressly requested that ORG be ordered not to allow the transfer of ownership to be entered in the land registry on DATE , that is after such an entry had been made .", "Section CARDINAL ( c ) gives everyone the right to bring civil proceedings with a view to having the existence of a right or of a legal relation determined provided that it is justified by a pressing legal interest .", "Pursuant to LAW ( CARDINAL ) , a court ’s judgment shall be based on facts as they exist at the moment of its delivery .", "Section CARDINAL ( CARDINAL ) provides that an appellate court is not bound by the facts as they were established at first instance .", "Under LAW ( CARDINAL ) , the data entered in the land registry , including information about the rights in respect of the property in question shall be considered trustworthy and binding unless the opposite is shown ." ]

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[ "The applicant was born in DATE and lives in Batman .", "On DATE the applicant was arrested and taken into police custody on suspicion of her involvement in the activities of an illegal organisation , namely the ORG ( ORG Party ) . The police officers drew up an arrest protocol in which they noted that they had found a false identity card on the applicant and seized it for the investigation .", "Following the Batman public prosecutor 's order , the applicant 's detention period was extended .", "On DATE police officers took statements from the applicant . She confessed to being a member of the ORG and stated that she had been involved in armed clashes with the security forces .", "On DATE the applicant 's statements were taken by the Batman public prosecutor to whom she again confessed to being a member of the ORG and stated that she had been involved in political education and propaganda activities for the organisation .", "On DATE she was brought before a single judge at ORG who took her statement and ordered her detention on remand .", "On CARDINAL DATE the principal public prosecutor at ORG filed a bill of indictment , charging the applicant under LAW and CARDINAL of LAW with carrying out activities for the purpose of bringing about the secession of part of the national territory and aiding and abetting an illegal organisation .", "DATE and DATE , ORG held DATE hearings and heard a number of witnesses . During these hearings , the applicant renounced her statements taken during her detention in police custody . Witnesses heard by the court stated that the applicant was an active member of the ORG and that she had been involved in armed clashes with the security forces .", "On DATE ORG convicted the applicant as charged and sentenced her to death under LAW . Taking into account her confessions before the court , the death penalty was commuted to a life sentence of imprisonment .", "On DATE ORG upheld the decision of the first instance court . It reasoned that the decision was justified as the evidence in the case file was capable of proving that the applicant was an active member of the ORG , which was an armed illegal organisation and carried out activities for the purpose of bringing about the secession of part of the national territory .", "On DATE ORG decision was pronounced in the absence of the applicant 's representative .", "The relevant domestic law and practice in force at the material time are outlined in the following judgments : PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and PERSON v. GPE ( [ ORG ] , ( no . CARDINAL/CARDINAL , § § PERSON , ORG CARDINAL-IV ) .", "By PERSON no . CARDINAL of DATE , published in ORG on DATE , ORG were abolished ." ]

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[ "NORP The applicant is an NORP national born in DATE . He is represented before the ORG by PERSON , of the PERSON d’Etat and ORG .", "NORP The applicant formerly lived in GPE ) , a ORG in which the death penalty was reintroduced by a statute of CARDINAL DATE .", "He was arrested there on DATE after the mummified body of his girlfriend , who had disappeared in DATE , was discovered at his home . On DATE he was released on bail , and on DATE an information was filed against him . In DATE , while the proceedings were taking their course , the applicant left GPE .", "A trial was held in absentia , and on DATE ORG found the applicant guilty of first - degree murder and sentenced him to life imprisonment . The applicant ’s lawyer applied to have the conviction reviewed but without success . He subsequently appealed to ORG , which declared the appeal inadmissible on the ground that the applicant had not appeared in court ; a petition to ORG for review of that decision was dismissed on the same ground .", "NORP The applicant was placed on ORG ’s wanted list and was tracked down in GPE , where he was arrested in DATE . On DATE ORG requested ORG to extradite him so that he could serve the sentence imposed on him in absentia . He was taken into custody pending a ruling on his extradition .", "NORP In a judgment of DATE ORG of ORG ruled against extradition and ordered the applicant ’s release . Basing its judgment on LAW ( c ) , ORG held , in particular , that the applicant had not unequivocally waived the right to defend himself in person or through legal assistance of his own choosing , that he had been tried and convicted in absentia without being able to obtain from a court which had heard him a fresh determination of the merits of the charge in respect of both law and fact , and that the extradition treaty between GPE and GPE did not entail any obligation to extradite where the proceedings in issue contravened NORP public policy or the requirements of ORG . The NORP authorities did not proceed with the extradition .", "By a statute which came into force on DATE the GPE legislature made a change to the relevant procedure so that persons convicted in absentia could , in certain cases , be granted a retrial .", "In a diplomatic note of DATE ORG submitted a further request for the applicant ’s extradition , stating that he would be granted a new trial if he so requested and that the death penalty would not be sought , imposed or executed . The applicant was taken into custody pending a ruling on his extradition .", "On DATE ORG of ORG ruled in favour of the applicant ’s extradition and ordered him to be released and placed under court supervision . The following conditions were attached to ORG ruling : the applicant was to be granted a new and fair trial , if he so requested , on returning to GPE , and to be able to avail himself of the remedies provided by the requesting ORG , and the death penalty was not to be sought and , if imposed , was not to be carried out . On DATE ORG dismissed an appeal on points of law against that ruling .", "In a decree of DATE the NORP Prime Minister granted the extradition on condition that , pursuant to the statute of DATE , the applicant was given a new and fair trial if he so requested on returning to GPE , and that the death penalty was not sought , imposed or carried out . The decree stated , inter alia :", "“ According to the assurances given by LOC of GPE on behalf of the GPE of GPE , PERSON will be retried , if he so requests , and will be able to avail himself of the remedies provided by the requesting ORG .", "The death penalty may not be sought , imposed or executed in respect of PERSON . ”", "The applicant applied to the Prime Minister to reconsider his decision ; that application was dismissed on DATE . On DATE he applied to the ORG d’Etat to quash both decisions .", "In support of his application , he argued in particular that the ORG of GPE ’s statute of DATE contravened the principle of separation of powers enshrined in LAW and that its constitutionality should normally be raised by the courts of their own motion or might be raised by the civil parties to the proceedings or by any citizen . That would be an obstacle to his being granted a new trial in conditions complying with LAW . He further submitted that his extradition had been granted by ORG on the basis of a specially passed law with retrospective effect ( the statute of DATE ) , which had been enacted with the sole aim of influencing the judicial outcome of the extradition proceedings against him , thereby breaching his right to a fair trial . He added that in any event , in view of the “ pressure of legal and media attention ” which the case had generated in GPE and which a jury would be not have been able to avoid , he would not be retried in GPE in conditions satisfying the requirements of LAW . He further maintained that his extradition would contravene LAW in that he would , in any event , be likely to have to serve a full life sentence without any genuine prospect of remission or parole . In addition , he alleged that , in view of the fact that the victim ’s body had been found after the death penalty had been restored in GPE , it was not to be excluded that he would be sentenced to death , especially as it had not been established that the death penalty could not be imposed by a court where it had not been sought by the prosecution ; there were therefore substantial grounds for believing that he faced a real risk of being sentenced to death and hence of being exposed to the “ death - row phenomenon ” , so that his extradition would breach LAW .", "In a judgment of DATE the ORG d’Etat dismissed PERSON applications . With regard to the first of the above - mentioned grounds , the PERSON d’Etat held that it was not for it to rule whether enactments applicable within the territory of the requesting ORG were in conformity with that ORG ’s LAW ; matters could only be otherwise if the impugned enactment had already been declared unconstitutional by means of a final decision in that ORG or if there had been “ such serious irregularities [ in its adoption ] that it must be regarded as invalid ” . With regard to the second ground , the PERSON d’Etat held that the statute of CARDINAL DATE was “ applicable in exactly the same manner to all persons tried and convicted in absentia who have fled to a foreign country which refuses to extradite them because they were convicted in absentia ” and that the applicant had not furnished any information enabling it to assess whether there was any foundation for his statement that a retrial would not be fair on account of the circumstances in which the statute in issue had been enacted . With regard to the third ground , the PERSON d’Etat held that in any event , “ the extradition of a person who faces a sentence of life imprisonment without any possibility of early release is not contrary to NORP public policy or LAW . The fourth ground was dismissed for the following reason :", "“ The extradition request ... relates to acts committed in DATE , before the enactment ... of the statute of the GPE of GPE in which the death penalty was introduced ; the evidence shows that that statute can not be applied to offences committed before it came into force .", "Even supposing that ... the offence of which [ the applicant ] is accused might be regarded at a new trial as having been committed after the statute of CARDINAL DATE came into force in view of the fact that the victim ’s body was not discovered until DATE , the Government of GPE gave an assurance in its request of DATE that if [ the applicant ’s ] extradition was agreed to , the death penalty would not be sought , imposed or carried out . The District Attorney of GPE has twice given an undertaking that the death penalty will not be sought in respect of [ the applicant ] . In an affidavit of DATE she gave a formal assurance that in the GPE of GPE the death penalty could not be imposed if it had not been sought . Consequently , there is no basis for [ the applicant ’s ] submission that , despite the conditions attached to the impugned order , his extradition had been granted without sufficient guarantees being offered and was therefore contrary to NORP public policy . ”", "On DATE , after the judgment had been delivered , the applicant cut his throat and slashed his left wrist .", "On DATE the Government produced to the ORG a medical certificate dated DATE , which attested that the applicant ’s state of health was compatible with his transfer to GPE .", "On DATE the ORG lifted the interim measure it had indicated to the respondent Government under Rule CARDINAL on DATE . The applicant was extradited to GPE on DATE .", "The statute which came into force on DATE ( CARDINAL GPE ( PaCS ) , section CARDINAL(c ) ) , provides :", "“ Extradition . – If the petitioner ’s conviction and sentence resulted from a trial conducted in his absence , and if the petitioner has fled to a foreign country that refuses to extradite him because a trial in absentia was employed , the petitioner shall be entitled to the grant of a new trial if the refusing country agrees by virtue of this provision to return him , and if the petitioner upon such return to this jurisdiction so requests . This subsection shall apply notwithstanding any other law or judgment to the contrary . ”", "NORP In an affidavit dated DATE the District Attorney , PERSON , gave the following undertaking :", "“ I , PERSON , GPE Attorney for GPE , GPE of GPE , do hereby state that the death penalty has not been sought in this case at any time , nor can it be legally imposed in this case . ORG will not seek the death penalty in any future action regarding this case , nor can it legally do so . Further , the ORG can not pronounce the death penalty in this case on its own motion under GPE law . ”", "Following the entry into force of the statute of DATE , PERSON swore a further affidavit , on DATE , “ in support of request for extradition from GPE ” . The affidavit stated that it was “ binding on the ORG and [ the LOC Attorney ’s ] Office ” and that “ LOC Office now can , and does , give full assurances that PERSON will receive a new trial at his request upon his return to GPE ” . The District Attorney further stated : “ The GPE District Attorney ’s ORG will fully support PERSON ’s right to a new trial under this statute . Under GPE law , which applies to the GPE of GPE , this promise binds not only the present GPE Attorney , but all future ORG and every prosecutor who may be responsible for the prosecution . ”", "The District Attorney added : “ ... under GPE law , it is impossible for a court to impose the death penalty for murders committed prior to the enactment of the death penalty statute on DATE . Because PERSON murdered [ the victim ] in DATE , he is not subject to the death penalty as a matter of law ” . She also stated the following :", "“ LAW prohibition against ex post facto laws in LAW , protects a person from the imposition of a penalty that was increased after he committed his criminal acts . ORG of GPE has explained that the ex post facto clause bars a legislature from retroactively altering the definition of crimes or increasing the punishment for criminal acts . Consequently , GPE can not change its law to impose the death penalty for any murder prior to the enactment of the statute . Therefore , the statute applies only to murders committed after its enactment . The case of ORG v. Truesdale , decided by ORG on DATE , unequivocally prohibits imposition of the death penalty for murders which were committed before the passage of the death penalty statute on DATE . The opinion binds all GPE courts , ORG and prosecutors regarding the imposition of the death penalty . ...", "The death penalty has never been sought or imposed by the ORG of GPE in this case . The District Attorney has submitted an affidavit that no death penalty can be imposed , nor will the death penalty be sought ... Any representation that the death penalty is a possibility is false . Under GPE law , which binds the GPE of GPE , the District Attorney ’s promise binds not only the present GPE Attorney , but all future ORG and every prosecutor who may be responsible for the prosecution . ”", "In a diplomatic note of DATE to ORG , GPE embassy stated : “ The new statute , CARDINAL GPE ( PACS ) Section CARDINAL ( c ) , enacted DATE , guarantees PERSON the right to a new trial for the murder of [ the victim ] ” . It provided the following clarifications :", "“ Under the new statute , the GPE of GPE , through its GPE , is now able to and does guarantee that PERSON will receive a second trial , with all attendant rights , if he were extradited from GPE and if he requested a new trial . Consequently , ORG provides its assurances that , if the Government of GPE extradites PERSON to GPE [ in connection with the murder of the victim in DATE in the ] GPE of GPE , PERSON will receive a new trial on the merits with all attendant rights .", "In addition , ORG provides its assurances that if the Government of GPE extradites PERSON to GPE to stand trial for murder in the GPE of GPE , the death penalty will not be sought , imposed or executed against PERSON for this offense . The sworn affidavit of GPE Attorney PERSON , dated DATE , and an earlier assurance by PERSON sworn DATE , affirms that under GPE law it is legally impossible for a prosecutor to seek or a court on its own motion to impose [ the ] death penalty for murders committed in GPE prior to DATE . ORG decision , ORG v. PERSON , dated DATE , unequivocally prohibits the imposition of the death penalty for murders committed prior to the enactment of ORG on DATE . This decision binds all GPE courts , district attorneys and prosecutors regarding the imposition of the death penalty . ... ”", "Those assurances were reiterated in a diplomatic note of DATE , in which it was also stated that ORG had held that laws enacted after a criminal judgment had been delivered , particularly where they might benefit the accused , were not inconsistent with the prohibition on ex post facto laws ( see PERSON v. PERSON , CARDINAL GPE DATE ) , a fact which served to confirm the constitutionality of the DATE GPE statute guaranteeing the applicant a new trial on his return to GPE .", "In an affidavit of CARDINAL DATE , however , PERSON , the lawyer who had represented the applicant at his trial in absentia in ORG , affirmed that in the PERSON case in DATE the District Attorney of GPE had sought the death penalty for offences committed before the statute of CARDINAL DATE restoring the death penalty in GPE had been enacted . Mr PERSON stated :", "“ In spite of all the governing authority being against retroactive application of the DATE death penalty , Judge O’Keefe , who presided over GPE trial , ruled that the GPE of GPE could seek the death penalty and question potential jurors about their views on the death penalty .", "The prosecutor never retreated from his position that he was entitled to seek the death penalty . The judge never reconsidered his ruling . ... PERSON was found not guilty , and that was the end of the case . The penalty portion of the case was never reached because of the acquittals .", "I never understood how the GPE of GPE as represented by ORG in GPE successfully argued the right of the ORG to use the death penalty retroactively as to ORG , and still do not understand how that happened . ”", "In an affidavit of DATE PERSON , a member of ORG , ORG , ORG and ORG and an associate professor at ORG , argued that the statute of CARDINAL DATE was unconstitutional . He stated , inter alia :", "“ In my professional opinion , the provision is clearly , without a doubt , unconstitutional . As a matter of separation of powers under LAW , it has been well established for CARDINAL DATE in GPE that the legislature has no power to disturb final judgments of conviction and sentence . In PERSON v. PERSON , CARDINAL GPE DATE ( DATE ) , ORG held that a statute purporting to grant a new trial to a litigant was unconstitutional . Likewise , in ORG v. Sutley , CARDINAL A.CARDINALd CARDINAL ( DATE ) , ORG held unconstitutional a statute which purported to reduce penalties for defendants who had already been sentenced for marijuana possession . ...", "The statute is also clearly unconstitutional because it violates LAW , LAW ) of LAW which gives ORG exclusive power to control matters of practice and procedure in the courts , while providing no power for the legislature . ...", "There are other potential constitutional problems with the statute . For example , the provision does not grant a new trial to all defendants convicted in absentia , but only to those who have been refused extradition , notably only Mr PERSON . The courts may view this statute as an arbitrary and capricious legislative enactment which is a violation of due process or a prohibited legislative bill of attainder directed to a particular individual . However , it should be unnecessary for a court to reach these issues because of its palpable unconstitutionality on separation of powers and LAW , LAW ) grounds . ”", "He reiterated that conclusion in affidavits of DATE and DATE , stating , inter alia ( extract from the affidavit of DATE ) :", "“ ... The legislature is without authority to change final judgments of the courts . ...", "In my expert opinion , the GPE of GPE and GPE District Attorney ’s Office have no power at all to insulate this law from judicial review . Because ... the legislative attempt to overturn a court ’s judgment of conviction on a murder case and life sentence is obviously violative of Article V , § CARDINAL ( c ) and separation of powers under LAW , a court will ultimately invalidate [ the impugned statute ] and hold that it is void . If GPE extradites PERSON to GPE it is extremely likely , despite the new GPE law , that he will be ordered to serve his life sentence without parole , received after his trial in absentia , without ever receiving a new trial .", "... even when the parties in a criminal case agree to a result , judicial review and acceptance is always a prerequisite . ...", "If PERSON is returned to GPE and neither party challenges [ the impugned statute ] , purportedly granting him a new trial , it is very likely that the family of the murder victim , or even any taxpayer in GPE , could successfully bring a challenge to this clearly unconstitutional law . ...", "If PERSON is ordered extradited to GPE , it is very likely that there will be a challenge to the constitutionality of [ the impugned statute ] which will be heard by the courts , which in turn will then declare the statute unconstitutional null and void . The original conviction and sentence , life without parole for PERSON , will be held to be valid and enforceable under GPE law . ”", "In an affidavit of CARDINAL DATE PERSON , of ORG and Chief of ORG of ORG , reached the same conclusion . He stated , inter alia :", "“ ... if Mr. PERSON returns to GPE and asserts the right granted to him DATE and him alone DATE ORG will invalidate the statute and Mr. PERSON will be recommitted , without a new trial , to serve the life sentence imposed after a trial at which he was not present , a sentencing at which he was not present , and an appeal he was not permitted to litigate . ”", "In an affidavit of CARDINAL DATE he declared :", "“ ... Frankly , I am appalled , but not surprised , by LOC ’s ‘ GPE which refers to the statute granting a new trial but makes no reference whatsoever to controlling decisions of ORG unequivocally holding that any such statute is invalid . Furthermore , I am surprised and disappointed by ORG blind endorsement of this deliberately misleading document .", "Although including citations to legal authority addressing issues that are not germane to the principal issues the District Attorney ignores , making absolutely no reference to , clear and compelling authority establishing that the statute it drafted is unconstitutional , unenforceable and invalid . ...", "Given DATE of contrary unbroken precedent it is impossible to see how the District Attorney can ‘ GPE that ORG will allow the statute in question to stand and allow or order a retrial . In the light of any real consideration the LOC Attorney ’s ‘ GPE must be dismissed as , at the least , misleading . ... ”", "In an affidavit of CARDINAL DATE PERSON , an attorney admitted to practise law in the GPE of GPE and before ORG , ORG and ORG and the author of the reference work entitled ORG , stated :", "“ ... I have reached the same inexorable conclusions as were reached by Professor PERSON and Mr Packel , to wit : that this legislation runs afoul of LAW as a violation of the separation of powers . In addition , this legislation violates LAW , section ORG ) , and it may also be a violation of due process and a prohibited legislative bill of attainder since it is directed apparently exclusively to the extradition matter involving PERSON .", "Should an extradition be granted and PERSON is returned to the GPE of GPE , if PERSON requests the grant of a new trial pursuant to CARDINAL Pa . PERSON CARDINAL(c ) , the court must act constitutionally and the court has the power and authority to raise the constitutionality of the statute sua sponte ( of its own will ; without prompting or suggestion ) and rule it unconstitutional , refuse to apply that statute , and refuse Mr PERSON a new trial , irregardless of any position , motion , request or assent by the ORG . In other words , the District Attorney of GPE does not have the ability to authorize or promise the grant of a new trial pursuant to CARDINAL Pa . PERSON ) .", "It is my opinion that if extradition is granted pursuant to CARDINAL Pa . PERSON ) , there can be no guarantee of a new trial . Instead if viewed in the light of its clear unconstitutionality , CARDINAL Pa . PERSON CARDINAL(c ) will not be upheld and PERSON will not be given a new trial requiring him to serve the sentence already imposed . ”", "In an affidavit of CARDINAL DATE PERSON , a member of ORG of ORG and counsel for the applicant in the extradition proceedings , affirmed , inter alia :", "“ ... it becomes apparent and a distinct possibility that even if the District Attorney should fulfill her promise , and thereafter , even if a trial court should act or be about to act in a manner inconsistent with its ability to assume jurisdiction ( i.e. by seeking to grant PERSON a new trial ) then ORG could , sua sponte ( on its own motion ) , reach out and take jurisdiction to demonstrate that the PERSON law is unconstitutional , and a lower court is not authorized to accept jurisdiction and vacate a final judgment pursuant to this ‘ PERSON law’ . ”", "In an affidavit of CARDINAL DATE PERSON likewise argued that the statute of DATE was “ clearly unconstitutional ” and that consequently , notwithstanding the pledge given by the District Attorney , PERSON , no court had jurisdiction to apply the statute and the applicant could not be granted a new trial . In a further affidavit of DATE he affirmed , inter alia :", "“ The GPE of GPE is relying exclusively on the ‘ PERSON law’ , passed on DATE to assure GPE that PERSON will be granted a new trial by a GPE court . It is my opinion , and the opinion of many other scholars , that a court will not , and indeed , can not grant PERSON a new trial pursuant to this statute or for any other reason . ...", "Merely because the law is not an ex post facto law does not make it constitutional . The constitutional defects in the PERSON law render it unenforceable . It is unenforceable because it violates the constitutional separation of powers principles long established by both ORG and ORG . See ORG v. Sutley , CARDINAL Pa. CARDINAL , CARDINAL A.CARDINALd CARDINAL ( DATE ) and ORG v. ORG , CARDINAL GPE CARDINAL , CARDINAL ORG CARDINAL , CARDINAL S.Ct . CARDINAL ( DATE ) .", "The legislature can not grant a new trial . It is as simple as that . The legislature can not impair , alter , amend or vacate the final judgement of a court of law . The legislature can no more grant a new trial for PERSON than it can for PERSON , or the Watergate defendants .", "Should PERSON be brought to GPE and the District Attorney , as promised , asked the court to grant him a new trial , the court would have to refuse to do so . The court would have to state that it could not act unconstitutionally and to grant a new trial pursuant to this statute , or for any other reason , would be to act in violation of the separation of powers concept and therefore unconstitutionally . ...", "... [ E]qually well settled ... is the rule that a law repugnant to the LAW is void and that it is not only the right but the duty of a court so to declare when the violation unequivocably appears : see PERSON v. Duquest , QUANTITY Yeats ( GPE ) CARDINAL , CARDINAL ( DATE ) ... , ORG v. Siggins , CARDINAL Pa. DATE , DATE , DATE A.CARDINALd CARDINAL , CARDINAL ( DATE ) .", "... Wherefore , the above accurately states my position and the position of several of the most respected constitutional scholars in GPE , amongst whose number are PERSON , PERSON ( Professor of PERSON , ORG ) ; PERSON , ORG ( Head of ORG of ORG ) and PERSON , ORG ( former District Attorney of GPE ) . ”", "In an affidavit dated DATE PERSON , Chief of ORG , GPE District Attorney ’s ORG , affirmed in particular that if the applicant was sentenced to life imprisonment , he would have the possibility of applying for release or for commutation of his sentence . Power to release prisoners or to commute their sentences was vested in the Governor of GPE ( see LAW , section CARDINAL , of LAW , and LAW ) . Any applications for release or for commutation of sentences were first examined by ORG , comprising the Lieutenant Governor of GPE , the Attorney General of GPE and CARDINAL members appointed by the Governor and approved by vote of ORG ( CARDINAL of the CARDINAL being a member of the Bar , CARDINAL a penologist , and CARDINAL a doctor of medicine , a psychiatrist or a psychologist ) . When the ORG examined an application from a prisoner serving a life sentence , it was required to interview the prisoner . If the ORG recommended commutation of a sentence and the Governor agreed , the decision was not subject to appeal . Mr PERSON pointed out , in particular , that DATE the procedure had resulted in “ CARDINAL releases , and CARDINAL commutations of life - sentenced prisoners ” . He concluded : “ These statistics suggest that , although PERSON may have little chance in the short run for gubernatorial relief , his longer term prospects are of a different nature . ... Were he to apply for release or commutation in DATE immediately after his return , relief would be unlikely and , indeed , unjust . History indicates , however , that , by the time PERSON has spent some considerable period in prison , the climate will have changed , and an application will be received in a different light . ”", "NORP In an affidavit of DATE Professor PERSON gave his opinion on the likelihood of a life sentence being commuted . He stated that it would be virtually impossible for the applicant ever to be released from prison after being given a life sentence in GPE . In that connection , he explained that prisoners serving a life sentence were not eligible for parole unless the ORG Governor first commuted the sentence to another one of a duration which afforded that possibility . Under LAW , section CARDINAL , of LAW , the Governor could only consider commutation if ORG had recommended it . Prisoners serving life sentences had to apply to ORG for permission to be interviewed by it ; the decision whether or not to grant a hearing was taken by a majority . If a hearing was granted , ORG made a recommendation , again by a majority . Even supposing a prisoner serving a life sentence managed to overcome those obstacles and received an order from the Governor granting commutation , he would still have to serve DATE in a pre - release centre before an application for parole could be considered . Decisions on admitting inmates to a pre - release centre were taken by the prison authorities , who had complete discretion in the matter . Even if an inmate was admitted to a pre - release centre , ORG could refuse parole on any ground ; that decision was not subject to review . Professor PERSON added , among other things , that DATE “ there was an average of CARDINAL inmates a year whose life sentences were commuted ” , whereas CARDINAL inmates were currently serving life sentences in GPE . He concluded by stating :", "“ Because PERSON has been a fugitive and has not as yet served any time on his GPE life sentence , there is no doubt , given the governing laws and the practical application of those laws , that a life sentence for PERSON in GPE would mean that he would eventually die in prison . ”" ]

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[ "The applicant , Mr PERSON , is an NORP national , who was born in DATE and lives in GPE . He was represented before the ORG by PERSON N. ORG and PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent Mr PERSON and their Co - Agent Mr PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "From DATE the applicant worked as a trainee lawyer .", "On DATE he filed his income tax return in respect of DATE .", "On the tax return he opted to allocate to the ORG an amount representing CARDINAL of the income tax due .", "Under section CARDINAL(CARDINAL ) of Law no . CARDINAL of DATE , CARDINAL of income tax is allocated to the ORG , to the NORP church , or to one of the representative institutions of CARDINAL other religions ( Union of DATE ORG , Evangelical Lutheran Church and ORG ) , which receive such contributions under an agreement ( intesa ) governing their relations with the ORG ( see Laws no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE and no . CARDINAL of DATE ) .", "Those Laws are based on Articles CARDINAL and CARDINAL of the LAW , which read as follows :", "“ The ORG and ORG are independent and sovereign , each within its own sphere . Their relations are governed by LAW . LAW to these PERSON which are accepted by both parties shall not require the procedure of constitutional amendment . ”", "“ All religious denominations are equally free before the law . Denominations other than ORG have the right to self - organisation according to their own constitutions , provided these do not conflict with NORP law . Their relations with the ORG are regulated by law , based on agreements with their respective representatives . ”", "Under section CARDINAL(CARDINAL ) of Law no . CARDINAL of DATE , taxpayers are required to indicate their choice for the allocation of the relevant percentage of income tax when they fill in their tax return . If no option is indicated , the sum is divided between the ORG , the NORP church and the institutions representing the other religions , in proportion to the choices made by all taxpayers .", "As regards the income tax portion allocated to the ORG , it must be earmarked for the financing of activities with a social purpose , in accordance with the relevant principles laid down by Presidential Decree no . CARDINAL of DATE . However , under section CARDINAL(CARDINAL ) of PERSON no . CARDINAL of DATE , the sum of MONEY ( ORG ) is deducted DATE from the total amount of this portion and can be used by the ORG freely according to its needs ." ]

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[ "The applicants are brothers . They were born in DATE and DATE respectively and lived in GPE .", "The facts surrounding the disappearance of the applicants ' brother , ORG , and of the first applicant , as presented by the parties , are set out in Part A. A description of the materials submitted to the ORG is contained in Part B.", "The applicants lived with their family in the village of GPE in GPE . Their brother , PERSON , born in DATE , lived in the same house . He played for the local football team and in DATE received the “ Best Football Player of the LOC ” award .", "The applicants submitted that on DATE their house and their neighbours ' house had been searched by an armed unit of ORG ( ORG ) , which had arrived in CARDINAL ORG vehicles and several armoured personnel carriers ( APCs ) . No documents authorising the search were presented . ORG was arrested in his house by men in military uniforms . They drove him away and he has not been seen since .", "NORP Immediately after ORG arrest the family started to look for him . They applied to various law - enforcement authorities in GPE and in GPE , asking for information about him . They have submitted to the ORG copies of letters addressed to ORG , ORG of the ORG and ORG of the Interior , as well as ORG , ORG , the director of the ORG and the Minister of the ORG . The relatives received very little substantive information in reply . On several occasions they received copies of letters stating that their complaints had been forwarded to other authorities .", "On DATE the head of the criminal police of ORG of the Interior ( NORP ) in PERSON ( начальник криминальной милиции временного отдела внутренних дел Октябрьского района г. ORG ) , Major PERSON , issued a certificate stating that on DATE ORG had been detained in GPE on suspicion of having committed a serious crime . The suspicion had been dispelled , and Mr Magomadov had been released on DATE at TIME , after the end of the curfew .", "The applicants ' mother submitted that when she had requested to see the register of detainees in LOC for the relevant dates , she had been refused permission .", "On DATE ORG of the ORG informed the applicants ' mother that the officers of the LOC department of the ORG had not participated in the operation of DATE . At the same time the letter stated that on DATE the head of the district department of the ORG , following a request from the Oktyabrskiy VOVD , had met with an “ operative group ” at the checkpoint between the villages of ORG and PERSON . The letter further explained that ORG had visually resembled a “ wanted fighter ” and that because of that the servicemen of ORG “ had invited him to PERSON in PERSON to clarify some questions of interest to them ” . The letter stated that the ORG had no information about the whereabouts of ORG and advised his mother to apply to the Oktyabrskiy VOVD .", "On DATE ORG forwarded the applicants ' mother 's complaint about her son 's detention to ORG . On DATE and CARDINAL , DATE and DATE ORG forwarded the first applicant 's complaints to ORG of the Interior . On DATE ORG forwarded the applicants ' parents ' complaint about the disappearance of their son to ORG , with an instruction to open a criminal investigation under LAW ( kidnapping ) .", "On DATE the Argun ORG informed the first applicant that a criminal investigation into his brother 's kidnapping had been opened on DATE .", "On DATE ORG of the Interior informed the first applicant that on DATE ORG had been detained by the ORG officers on suspicion of involvement in illegal armed groups . He had been taken to the Oktyabrskiy VOVD in PERSON . Following an inquiry , it had been established that the detainee had no connection to the illegal armed groups and he had been released on DATE . However , in view of the curfew , he had requested to spend TIME at the NORP and had been permitted to do so . In TIME of DATE he had left the ORG and had never been seen again . The letter further stated that pre - trial detention centre IZ-CARDINAL/CARDINAL in GPE had denied that Mr Magomadov had ever been detained there . On DATE a search file ( no . K-CARDINAL/CARDINAL ) had been opened and forwarded to the Oktyabrskiy VOVD as it was the last place where he had been seen .", "On DATE the head of the criminal investigations unit of ORG of the ORG stated that the initial complaint about ORG disappearance had arrived at ORG on DATE . It had first been forwarded to the PERSON and then , on DATE , to the Oktyabrskiy VOVD . No news had been obtained in the case after that . The ORG 's missing persons database contained no reference to an ORG .", "On an unspecified date ORG of the ORG issued a notice which stated that ORG had been detained on DATE by officer NORP of the Oktyabrskiy VOVD , accompanied by the staff of the NORP district department of the ORG , on suspicion of having committed a crime . The detainee had been delivered to the Oktyabrskiy VOVD , where he had been checked and it had been established that he had no involvement in the crime . ORG had been released at TIME on DATE and had never been seen again by the ORG officers . A document concerning the “ operative measures ” conducted to investigate Mr ORG 's involvement in a crime had been issued to the officers of the PERSON department of the ORG .", "On an unspecified date a testimonial as to the character of ORG was issued and signed by a number of sports officials from the LOC district and by CARDINAL members of the football team and its supporters . It attested that he was a good player and a reliable member of the team and stated that , since DATE , when the hostilities had started in GPE , FAC “ had nothing to do with illegal armed groups or with terrorist activities , was not interested in the FAC movement , did not use or distribute illegal drugs , and did not sell arms ” .", "On CARDINAL occasions LOC , acting on the first applicant 's behalf , contacted the Prosecutor General with requests for information . Its letter of DATE referred to the contradictory information obtained by his relatives from law - enforcement bodies . It indicated that there had been no entries in the register of detainees of the Oktyabrskiy VOVD referring to a Mr Magomadov . They also attached a copy of a statement by the head of the NORP village administration to the effect that on DATE there had been a “ special operation ” in the village , as a result of which ORG had been detained by unknown “ military servicemen ” . ORG further requested a number of actions to be taken by the law - enforcement bodies to clarify the circumstances of Mr ORG 's detention and to inform his relatives about the progress of the investigation .", "On DATE ORG informed the first applicant that on DATE a decision to adjourn the criminal investigation in the case in which he was a victim had been quashed and the proceedings had been resumed . No further details were given .", "On DATE Memorial again contacted ORG , requesting information about the criminal investigation into ORG disappearance . It appears that this letter remained unanswered .", "The Government in their memorial of DATE referred to documents received from different authorities , and gave several inconsistent versions of what had happened to ORG on CARDINAL and DATE . They submitted that the investigation had failed to identify the persons responsible for his kidnapping or to establish his whereabouts . Mr ORG had been declared a missing person and put on the federal missing persons list . They also stated that there existed information that in DATE he had been spotted in internally displaced persons ' ( ORG ) camps in ORG , recruiting fighters for the field commander PERSON .", "NORP On DATE the applicants ' representatives informed the ORG about the first applicant 's “ disappearance ” . They referred to LAW and linked the first applicant 's arrest with his application to the ORG in connection with his brother 's disappearance . They submitted that in DATE the first applicant had been in GPE . He had last contacted his relatives on DATE .", "The second applicant referred to information received from another of his brothers , ORG , and his nephew , PERSON . They had apparently been visited in their house in GPE on DATE by a group of persons wearing camouflage and masks who had been looking for the first applicant . After intervention by other security officers the men in camouflage had presented ORG identity documents . They had instructed ORG to come to the local ORG office . DATE at the local ORG office ORG was told that a criminal case had been opened against his brother , the first applicant . No further details were given .", "On DATE a man claiming to be a member of ORG of the President of GPE brought a note to the applicants ' mother 's house . The note was allegedly written by the first applicant and addressed to his family . This note was interpreted by his family as meaning that the applicant was at that time detained at the main NORP military base in GPE , in GPE . It was dated DATE and signed “ Magomadov ” . The applicants submitted a copy of this note to the ORG . It says :", "“ Hello , mother , father and the rest ,", "I am fine . I am in good health , I am alive and well , and wish you the same . Mother , you probably recognise my handwriting . Grandmother PERSON , grandfather PERSON . Mother , your father 's name was PERSON , your mother 's was PERSON .", "PERSON from PERSON will bring the letter . Please help him to find PERSON , in order to release me . At present I am in our republic . PERSON will be fine . You should find Doda through PERSON . ”", "On DATE the NORP Human Rights Commissioner sent a letter to ORG , asking them to take steps to discover the whereabouts of PERSON , an applicant to the ORG .", "On DATE the ORG requested the respondent Government to submit additional factual information concerning the first applicant 's whereabouts and asked them whether he had been detained by a ORG authority in DATE or DATE .", "On DATE ORG responded to the Human Rights Commissioner . It had established that at DATE the first applicant had arrived in GPE . On DATE the first applicant had been briefly detained by officers from ORG of ORG for an administrative offence , namely a breach of the requirement to be registered at his place of temporary residence . The letter further stated that the first applicant was not registered as residing in the capital , and that he had not been found on the lists of victims of accidents , missing persons , inmates of pre - trial detention centres or wanted persons . No applications were recorded at the bodies of ORG about his abduction or search .", "On DATE ORG forwarded a letter to the NORP Human Rights Commissioner . The letter stated that the criminal case concerning ORG abduction was pending with ORG . As to the first applicant , ORG had no information about his whereabouts or alleged kidnapping .", "On DATE ORG decided not to open criminal proceedings into the alleged abduction . On DATE ORG quashed this decision and opened criminal investigation file no . DATE under LAW ( kidnapping ) . ORG was entrusted with the investigation . Documents from the investigation file , submitted by the Government , are summarised below in Part B.", "The Government in their memorials stated that it was impossible to establish the first applicant 's whereabouts . No evidence had been obtained in support of the allegation that the first applicant had been detained at the FAC military base , or that he had been kidnapped by servicemen of the ORG in connection to his application to the ORG . Nor was there any information available to connect the first applicant with the illegal armed groups operating in GPE . The Government referred to the information from ORG and the ORG , which denied having ever detained the first applicant and stated that they had no information about his whereabouts . The Government also stated that in DATE the investigation into the first applicant 's kidnapping had questioned CARDINAL relatives of the first applicant and that his mother had been granted victim status in the proceedings . CARDINAL serviceman of ORG , GPE , was questioned and stated that he had heard that the first applicant had been in GPE prior to his disappearance . It also follows from the documents submitted by the Government that the first applicant was under arrest warrant for illegal handling of explosive devices .", "It follows from the ORG 's memorials and from a copy of the prosecutor 's order of DATE , submitted by them , that the criminal investigation into the first applicant 's kidnapping was adjourned on DATE , on account of the failure to identify the culprits . On DATE the investigation at ORG was resumed .", "The applicants submitted a copy of an information letter from ORG , containing details of a number of allegations of persecution of human rights activists in LOC , based on the relevant report by ORG . In respect of the alleged abduction of the first applicant , the letter stated that in DATE the first applicant had been charged in absentia with illegal storage and transfer of explosive devices and put on the wanted list . They also cited data from the transport police , according to which the first applicant had travelled in DATE from PERSON ( GPE ) to PERSON - on - Don . ORG noted that his relatives had not applied to the law - enforcement bodies with regard to his disappearance . In this connection , ORG concluded that there were reasons to suspect that the first applicant had staged his disappearance in order to evade justice ( see Part B below ) .", "The parties submitted a number of relevant documents , summarised below .", "In DATE the Government submitted copies of the entire investigation file no . CARDINAL opened in relation to ORG disappearance . The case file consisted of CARDINAL volumes comprising CARDINAL pages . In addition to these , in DATE the Government submitted an update and copies of documents produced after DATE . The most important documents can be summarised as follows :", "On DATE ORG opened a criminal investigation into the arrest of ORG , born in DATE , by unidentified armed persons on DATE at his home in GPE . The decision referred to LAW , paragraph CARDINAL , of LAW ( unlawful deprivation of liberty ) .", "On DATE the applicants ' mother wrote a letter to ORG in which she described the circumstances of her son 's arrest and asked him to establish his whereabouts .", "On DATE she submitted a similar letter to ORG .", "On DATE the first applicant and his parents contacted ORG , ORG , the head of the ORG and the Minister of the ORG with a complaint about the inaction of the investigating bodies . They referred to the inconsistent statements made by various bodies and asked the authorities to carry out a number of investigative steps to find out the whereabouts of their relative .", "On DATE and DATE the first applicant wrote to ORG and complained about the inefficiency of the investigation . He requested the prosecutor to inform him of the results of the investigation . He also offered to assist the investigation in organising the search for his brother .", "On DATE the investigator informed the first applicant that the investigation of the criminal case had been resumed .", "On DATE the first applicant was questioned as a witness about the circumstances of his brother 's arrest and disappearance . In his statement he referred to the document signed by the head of the PERSON stating that his brother had allegedly been released on DATE , but added that the family had had no news of him .", "On DATE the investigators questioned the applicants ' mother . She submitted an account of her son 's detention and the search for him . She also submitted a photograph of ORG .", "On DATE the investigators questioned the first applicant . He confirmed that the family had had no information about his brother since DATE . On DATE he was granted the status of a victim in the proceedings .", "On CARDINAL DATE the first applicant was again questioned about the circumstances of his brother 's detention and the search for him .", "On DATE the investigators questioned the head of the GPE administration . He stated that on DATE at TIME he had been alerted by the residents to the fact that a “ sweeping ” operation was taking place at the PERSON ' home . When he arrived there he saw CARDINAL APCs with concealed numbers and CARDINAL men in camouflage around the house , mostly wearing masks . The witness did not know the servicemen who had conducted the operation and they had refused to identify themselves . The officers of the military commander 's office and of the local police station , to whom he had applied , had not been aware of the operation and had refused to accompany him to the site . When TIME he had returned there , ORG mother had told him that her son had been taken away by the military . DATE he had gone to the Oktyabrskiy VOVD to assist the relatives in the search for ORG , together with officer PERSON from the district ORG department . The officer had gone inside and had returned TIME with a letter which confirmed that on CARDINAL October CARDINAL Mr Magomadov had been detained there and released on DATE . He had had no news of FAC since .", "On DATE the investigator examined the log entries of the Oktyabrskiy VOVD listing the persons who had been delivered to the department premises and the persons who had been detained in the temporary detention unit ( изолятор временного содержания – ORG ) DATE and DATE . ORG was not listed in either of the logs .", "DATE . On DATE the Oktyabrskiy VOVD confirmed that ORG name was not listed in their records .", "On DATE the investigator requested the prosecutor of ORG to question the police staff who had been on an assignment in LOC in DATE about the circumstances of ORG detention , questioning and release .", "On DATE the investigator instructed ORG to question Major PERSON , who at the relevant time had headed the criminal police at LOC .", "On DATE the investigator requested ORG to question Major PERSON and officer NORP , who had at the time served at LOC .", "On DATE and DATE the investigator again requested ORG Prosecutors to question officer NORP , Major PERSON and other servicemen , and supplied them with a detailed list of questions concerning the events of DATE .", "On DATE officer NORP was questioned and stated that he had served at the Oktyabrskiy VOVD between CARDINAL DATE and DATE . During that period he had on many occasions participated in operations in the village of GPE , and therefore he could not recall any specific details about the operation of DATE . He remembered that he had received operational information from undisclosed sources according to which ORG had been an active member of the illegal armed group headed by PERSON . On DATE he had taken part in the cordoning - off of the PERSON ' house in GPE , while other servicemen had been in charge of ORG arrest and questioning . NORP stated that Mr Magomadov had been released from the PERSON before the end of TIME and that he was not aware of any documents drawn up in respect of his detention , questioning or release . He further stated that he had heard from other servicemen of the PERSON and of the ORG that in DATE or DATE Mr Magomadov had been seen recruiting new members to PERSON 's group in the ORG camps in ORG .", "On DATE R. was again questioned . He stated that on DATE , along with other officers of the VOVD , he had accompanied the ORG officers from PERSON to PERSON , where they had detained ORG and brought him to the PERSON . NORP stated that when the group had arrived at GPE they had first visited the district department of the ORG and CARDINAL officers from that department had accompanied them to the PERSON ' house . NORP could not recall the names of these officers , but he was certain that they were from ORG of the ORG where he had been on many occasions and seen them . He was also certain that they had a “ good relationship ” with the head of the VOVD and that that was the reason why the officers of the PERSON had accompanied them and had afterwards allowed them to question the detainee on their LOC . NORP stated that some ORG officers had told him that Mr Magomadov had been involved in illegal arms transfers and that later he had been seen in ORG recruiting fighters . On DATE NORP was shown a photograph of ORG , but did not identify him .", "On DATE the investigation questioned Major PERSON , who at the relevant time had headed the criminal police of the VOVD . Major PERSON stated that a group of ORG officers had brought a detainee to the premises of the Oktyabrskiy VOVD and questioned him there . He was not aware of the details of the case and had not given any orders to detain or to question FAC . The officers of the PERSON had not participated in the detention or questioning of the detainee , and he had not been placed in the administrative detention cell . Major PERSON testified that he had seen the detainee being questioned by the officer in charge of the ORG group , that the detainee had looked normal and that no physical pressure had been put on him . On DATE he had asked the ORG officers if there were any unauthorised persons on the NORP premises , to which they had replied in the negative . Major PERSON denied that he had issued the notice of DATE which had confirmed Mr ORG 's detention on the NORP premises , and denied that he had seen it before or had signed it . He alleged that some ORG officers had requested him to issue such a notice but that he had refused to do so .", "NORP In DATE a handwriting analysis concluded that it was impossible to determine whether it was indeed Major PERSON 's signature on the notice , owing to the insufficient amount of material under examination .", "On DATE the investigator was informed that further questioning of Major PERSON was not possible because the latter had quit the service and left his previous place of residence .", "On DATE the investigation questioned Colonel PERSON , who at the relevant time had headed the Oktyabrskiy VOVD in PERSON . He stated that the officers of the department had participated in many special operations , that he could not recall any details about the one of DATE and that all the information should be available in the appropriate records of the VOVD .", "DATE the investigators questioned CARDINAL servicemen of ORG and Tyumen regional departments of the interior who from DATE had served at FAC in PERSON . Nobody admitted taking part in the detention or questioning of ORG , and no one identified him on the photograph . The officers responsible for the administrative detention cell stated that all detainees had been properly recorded , that the cell was the only place used for detention in the department and that the records were left in the PERSON for the next shift . They stated that the detainees could only be transferred to another law - enforcement body , such as the ORG , further to a written order from the head of the VOVD .", "The investigators also identified persons who had been detained in the administrative detention cell at LOC . CARDINAL of them were questioned in DATE , and stated that ORG had not been detained with them there or in the GPE pre - trial detention centre ( GPE ) DATE .", "In response to the investigator 's request of DATE , the GPE district department of the ORG on DATE denied any involvement in the detention of ORG .", "On DATE , following a request by the first applicant , the investigator requested the head of ORG of the ORG to identify and question officer PERSON , who had headed the NORP district department of the ORG in DATE , and who had allegedly participated in ORG arrest and questioning .", "On DATE the investigator requested the LOC department of the ORG to submit a copy of the document issued to them by the Oktyabrskiy VOVD concerning the “ operative measures ” conducted to check ORG involvement in a crime . He also requested the department to find and question officer PERSON and any other persons who had been involved in the operation of DATE and Mr ORG 's questioning .", "On DATE the LOC department of the ORG replied to the investigator that its office had no archives and therefore was unable to submit a copy of the document requested .", "On DATE ORG of the ORG informed the investigator that it had no information about the operation of DATE or about Mr ORG 's arrest . They also stated that the officer who had been in charge of the district department at the relevant time had returned to his permanent place of service after the completion of his assignment , and that his whereabouts would be communicated later .", "On DATE ORG of the ORG again stated that its service had not detained ORG and had no information about him .", "DATE . On DATE the investigator requested the military commander of LOC to inform him which military units had participated in the special operation on DATE and where FAC was . In an undated reply the district military commander denied that any special operations with the participation of the military servicemen had taken place in GPE on that date and stated that the commander 's office had no information about the whereabouts of the missing person .", "On DATE the investigator requested the ORG prosecutor to check whether ORG was still being detained at FAC , since there had been no news of him after his alleged release on DATE .", "In DATE the investigator forwarded a number of requests to the ORG , the military commanders ' offices , the PERSON and Oktyabrskiy district departments of the interior ( ROVD ) , and detention facilities in LOC . The requests sought information about the operation carried out on DATE in GPE , the detention of Mr Magomadov at the Oktyabrskiy VOVD on DATE , any witnesses and persons responsible for questioning him , and his current whereabouts . To the letters were attached photographs and a description of Mr Magomadov . The relevant authorities were requested to submit copies of the custody records for the periods in question .", "NORP In reply to the requests , on DATE the military commander 's office of LOC stated that none of its servicemen had participated in any operations on DATE and that it had no information about the whereabouts of ORG . Similarly , the NORP ROVD replied that its officers had been serving in GPE after DATE [ sic ] and that upon arrival they had not received any registration documents relating to DATE .", "In DATE and DATE the regional departments of ORG in LOC responsible for pre - trial detention facilities and the regional departments of the ORG each stated that ORG name was not in their respective lists of detainees .", "On DATE the NORP PERSON informed the investigators that on DATE they had opened a search file ( no . CARDINAL ) in respect of the missing person PERSON . Previously a search file had been opened by the Oktyabrskiy VOVD as no . CARDINAL/CARDINAL .", "In DATE the regional departments of ORG in ORG , in reply to requests from the investigator , confirmed that ORG had been placed on the federal wanted list as a missing person , but that they had no information about him .", "NORP In DATE the investigators requested ORG of the Interior to check ORG involvement with illegal armed groups . They also requested the PERSON of PERSON to submit a copy of the search file opened by that office . It appears that both requests remained unanswered .", "DATE . The copy of case file no . ORG contains documents relating to other criminal cases investigated by the same prosecutor , concerning “ disappearances ” of several persons , allegedly after their detention at the Oktyabrskiy VOVD in PERSON DATE . According to these documents , on DATE the officers of the ORG had detained PERSON near a café at FAC and delivered him to the PERSON , after which he had disappeared . On DATE unidentified military servicemen had detained B.A. at roadblock no . CARDINAL in ORG because he had been carrying an invalid identity document , and had taken him to the Oktyabrskiy VOVD , after which point his whereabouts were unknown . On DATE unknown military servicemen had detained PERSON in FAC and delivered him to the Oktyabrskiy VOVD , after which he had disappeared . On DATE ORG had arrived at FAC , where he had been employed on a temporary contract , to receive his salary . After being discharged , he had been seen in the courtyard of the PERSON and had then disappeared , and his whereabouts remained unknown . The officers of the PERSON questioned about these persons denied having seen or detained them .", "On DATE the investigator of ORG adjourned the investigation in criminal case no . DATE owing to the failure to identify the culprits .", "On DATE a prosecutor from ORG quashed the order of DATE and forwarded the case to ORG for additional investigation . The order also listed a number of actions necessary for the conduct of the investigation , including identification and questioning of the officers of LOC and other law - enforcement authorities who had been responsible for ORG detention , questioning and release .", "DATE the investigation was adjourned CARDINAL times , and each time it was resumed with an instruction to carry out a more detailed investigation . The prosecutors , in particular , ordered to identify and question the officers of the ORG who had participated in the detention and questioning of ORG . The latest document in the investigation file was dated DATE and again ordered steps to elucidate the disappearance .", "The applicants submitted information relating to other cases of “ disappearances ” in ORG in DATE and DATE . They stated that there had been CARDINAL cases of disappearances in LOC in DATE . They listed QUANTITY persons who had been detained DATE and who had last been seen at the Oktyabrskiy VOVD , after which they had disappeared or been found dead . In all cases criminal investigations and/or searches had been commenced but had produced no results .", "The applicants also submitted information about the trial in DATE of a police officer , PERSON , from ORG , who had been charged with fraud , abuse of power and causing grave bodily harm , committed in DATE . According to the bill of indictment , the officer had severely beaten a detainee on the premises of the Oktyabrskiy VOVD on DATE . According to the witness statements , as a result of the beatings the detainee had lost consciousness and suffered numerous fractures and other injuries . In order to conceal the crime , on the following morning the officer had forged a notice of release and driven the detainee away . The detainee had never been found and was considered a missing person .", "The Government submitted a number of documents from the file on the criminal investigation opened into the first applicant 's disappearance . On DATE the ORG reviewed information about the first applicant 's disappearance and concluded that it was not necessary to conduct a criminal investigation owing to the absence of corpus delicti . The decision referred to the information obtained from the first applicant 's relatives in GPE and from his ex - wife PERSON in GPE , according to which he had not been seen since DATE . It also referred to the note transmitted by an officer of the law - enforcement authorities to the first applicant 's relatives , from which they concluded that he had been detained in GPE and had asked them to find a certain person in order to be released .", "On DATE ORG quashed the order of DATE and ordered a criminal investigation into the disappearance . The order noted that there were reasons to believe that the first applicant had been kidnapped .", "The investigation file was assigned no . DATE . In DATE the investigation was transferred to a district prosecutor 's office in GPE , because the first applicant had been last seen there . The investigation located and questioned the first applicant 's ex - wife , PERSON , who stated that she and the first applicant had divorced in DATE and that she had last seen him in DATE .", "Furthermore , the investigation found out that the first applicant was on the wanted list on suspicion of having committed the offence of illegal storage of explosive materials . The criminal case against the first applicant had been investigated by the ORG . In view of such circumstances the investigation concluded that the possibility of the first applicant 's kidnapping by members of the law - enforcement bodies was ruled out . It failed to obtain any information concerning the first applicant 's alleged kidnapping in GPE in DATE .", "In DATE the investigation of the criminal case was entrusted to ORG . On DATE the investigation was adjourned on account of failure to establish the culprits . On DATE the investigation was resumed . The Deputy Prosecutor of GPE noted that the investigation was incomplete and had failed to elucidate the circumstances of the first applicant 's disappearance .", "The applicants submitted a copy of a letter from ORG to the Chairwoman of ORG , PERSON Pamfilova . The letter , dated DATE , contained information concerning a number of allegations of persecution of human - rights activists in LOC , based on a report by ORG . In respect of the first applicant , the letter stated the following :", "“ It was established that Ya . A. Magomadov had left for GPE on DATE and had last contacted his relatives on DATE , after which date there had been no news from him . On DATE unknown persons , armed with firearms and wearing camouflage uniforms and masks , looked for ORG in GPE . On DATE the relatives received a note allegedly written by ORG and a copy of his passport photo . The man who had brought the note and the photograph stated that [ the first applicant ] was being detained at the military base in GPE , that he had been brought there from GPE and that [ his relatives ] were required to find a certain person in exchange for his release .", "The relatives contacted the military base in GPE , where they were told that [ the first applicant ] was not being detained there . It follows from ORG statements that the note was delivered to them by a member of ORG of the President of GPE by the name of PERSON , born in the village of PERSON .", "According to information submitted by the head of the PERSON , serviceman [ ORG NORP ] of the street patrol service of ORG of PERSON ( полк ORG при МВД ЧР ) uses the radio call signal ' Lord ' and is known to his friends and relatives as PERSON . When questioned as a witness , [ NORP ] stated that he came from the village of PERSON . He did not know [ the first applicant ] and had never seen him . He was aware of the latter 's detention in GPE from local residents .", "The mother of the missing person , PERSON , was questioned as a witness and stated that in DATE during a ' sweeping operation ' her son PERSON had been kidnapped . ... Another of her sons , [ the first applicant ] , was actively searching for GPE , but did not find anything . [ The first applicant ] has lived in GPE since DATE . While in GPE , he submitted an application to ORG . In connection with the search for his brother , [ the first applicant ] came to GPE and told her that servicemen from the law - enforcement bodies had advised him to be less persistent in the search for his brother . She was not aware of any other pressure put on [ the first applicant ] . She was also not aware of the search allegedly carried out at her house by ORG officers on DATE . As to the information from ORG that [ the first applicant ] had contacted them on CARDINAL or DATE for the last time , she explained that he could not have called them because there was no telephone connection with PERSON .", "On DATE [ PERSON ] returned home from ORG , and her daughter - in - law told her that around lunchtime they had been visited by officers of the law - enforcement bodies who had been looking for [ the first applicant ] , and had then asked NORP [ ORG , the applicants ' brother ] to come to the military commander 's office . On DATE Ibragim went to the military commander 's office , but she was not aware of the contents of the conversation . She was not aware about the note allegedly received from [ the first applicant ] and she would not be able to identify his handwriting .", "ORG , the brother of the [ first applicant ] , explained that he had a younger brother by the name of PERSON , who for DATE had lived in GPE . He was afraid to return to GPE because he had friends among members of [ illegal armed groups ] . [ The first applicant ] also did not allow him to come home . When he was questioned as a witness , ORG stated that for DATE PERSON had not lived at home , and that , according to hearsay , he had joined an illegal armed group . He was not aware of his whereabouts . [ The first applicant ] was last at home in DATE and DATE . As to the information from ORG that [ the first applicant ] had called them on DATE from GPE , it could not be true , because there was no telephone connection with PERSON .", "On DATE he received a message through his wife to appear before the law - enforcement bodies . On DATE he went to the military commander 's office , where he talked to an ORG officer by the name of PERSON . He asked him questions about [ the first applicant ] , in particular whether he had come by car and whether he had a car .", "In DATE they were visited by a member of ORG called Timur , nicknamed ' Lord ' , who had brought a note from [ the first applicant ] in which he had written that he was in the territory of GPE . PERSON also said that [ the first applicant ] had asked for a man called PERSON to be found through their brother PERSON . The note was written [ in the first applicant 's ] handwriting . They did not apply to GPE in connection with the search for [ the first applicant ] . They did not look for ORG , because they had no connection with PERSON . [ CARDINAL other relatives ] gave similar statements .", "[ The second applicant ] stated , in addition , that after he had received the note he had gone to GPE , where he had met GPE [ the first applicant 's ex - wife ] . She said that she had last seen him in GPE in DATE . She did not explain under what circumstances . She also stated that the officers of ORG were trying to find [ the first applicant ] . He did not take any other steps to find his brother , and did not apply to the military base in GPE . He was not aware of [ the first applicant 's ] whereabouts .", "The head of ORG replied that they were not aware of [ the first applicant 's ] whereabouts and had taken no action to find him .", "During the investigation it had proved impossible to locate the original of the note . Apart from that , the relatives had no examples of [ the first applicant 's ] handwriting , and therefore it was impossible to verify who had been the author of the note .", "On DATE , according to information from witnesses and PERSON that [ the first applicant ] had been last seen in GPE , the case was forwarded to ORG for investigation .", "The head of ORG – head of centre “ T ” ( начальник ОРБ - начальник центра « Т PERSON ) [ of ORG of ORG of GPE responsible for ORG ? ] replied to the investigator that [ the first applicant ] was wanted by ORG of the NORP ORG in relation to the investigation of a criminal case .", "It was established that criminal case no . ORG had been opened on DATE by a senior investigator for particularly serious cases , from ORG of ORG , under LAW , paragraph CARDINAL , of LAW . The criminal investigation was opened on the basis of a statement by [ M. ] about the illegal storage of explosive devices in the following circumstances .", "In DATE PERSON had met a resident of the village of GPE named PERSON . In DATE PERSON asked him to hide some arms which belonged to him . DATE after the conversation PERSON brought him several packages , which , as PERSON had guessed , were explosive devices . He hid the packages in a barn at the following address : GPE Region ... In DATE PERSON decided to get rid of the explosives . He took CARDINAL packages to the pond located at ... and , having broken the ice , threw the packages into the water .", "On DATE the crime scene was examined in the presence of M. Three packages were found . According to the assessment by the experts from the ORG 's ORG , they were improvised explosive devices , containing plastic - based explosives , an ED-CARDINAL electric detonator and metal beads .", "On the basis of the above , on DATE [ the first applicant ] was charged in absentia with committing a crime under LAW , paragraph CARDINAL , and put on the wanted list .", "During the investigation of the case the investigation body raised doubts as to whether [ the first applicant ] had really been kidnapped or whether he had initiated his own kidnapping , having learnt that he was sought by the ORG in connection with a serious crime . This version is supported by the information obtained from ORG of ORG , according to which the following tickets were used DATE and DATE : Ya . A. Magomadov had travelled from PERSON to GPE on DATE at TIME . The ticket was purchased on DATE at TIME . In the meantime , his relatives allege that he had left GPE on DATE . In addition , none of the [ first applicant 's ] relatives have applied to the law - enforcement authorities in order to organise a search for him .", "Materials relating to the checks carried out by the ORG servicemen at the PERSON ' house in GPE on DATE and on DATE were set aside and forwarded to the military prosecutor of ORG ( UGA ) for a separate investigation on DATE ( document number CARDINAL ) .", "Under instructions from ORG , on DATE the criminal case file no . DATE was sent by ORG to ORG for further investigation . On DATE the case file was received by an investigator from that office , who extended the term of the investigation until DATE . The investigation is under way . ”" ]

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

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[ "The applicant , a NORP national who was born in DATE and died in DATE , was resident in GPE at the relevant time .", "During DATE he acquired for value a CARDINAL - floor freestone building , constructed in DATE , in the sub - prefecture of PERSON , GPE . The building , which had a total floor space of CARDINAL m² , was of architectural interest in its own right .", "On DATE ORG decided to classify the property as a “ cultural asset ” within the meaning of ORG no . CARDINAL of DATE ) . On DATE it was included in the project for protection of the urban environment . It was also included on ORG inventory for the protection of the cultural and natural heritage .", "On DATE the executive council of ORG province issued an expropriation order in respect of the property in the context of the “ Project for the environmental rehabilitation and regeneration of the streets around GPE PERSON 's Well ” . On the basis of a valuation report submitted on DATE by a panel of experts ( hereafter “ panel no . CARDINAL ” ) made up of CARDINAL representatives of the authorities and CARDINAL representatives of property owners , and in line with the “ high - grade building ” category in the construction price index published by ORG , the council determined the building 's value at MONEY ( TRL ) ( MONEY ( ORG ) ) . This amount was paid to the applicant on the date of transfer of ownership .", "On DATE the applicant lodged an application for increased compensation for the expropriated building with ORG . He requested that a new panel of experts , to include a qualified art historian , re - assess the property , taking into account its historical and architectural value . He claimed FAC ( about EUR CARDINAL ) in additional compensation .", "On DATE the court held a hearing and dismissed the applicant 's request for re - valuation of the building on the ground of its historical value . The court held , inter alia , that under LAW ( CARDINAL ) of LAW ( Law no . CARDINAL ) ( see paragraph CARDINAL below ) , the panel of experts responsible for the building 's valuation could only determine its value on the basis of clearly defined objective data . At the same time , it agreed to the appointment of a new panel of experts , to be made up of a civil engineer , an architect and a representative of property owners .", "On DATE , after visiting the site , the court - appointed panel of experts ( hereafter panel no . CARDINAL ) submitted its report . With regard to those features and factors which had a bearing on the property 's value , it reached the following conclusions :", "“ The property in question is located in the ORG neighbourhood , within the territory of PERSON , in LOC . It is recorded in the land register as a solid structure house with a courtyard . Situated in an urban area , it is classed as a listed building in the project for protection of the urban heritage . The decision to classify the building was adopted by ORG on DATE ...", "The property under dispute ... is located ... in the town centre , at the corner of CARDINAL streets , and its south- and east - facing façades give onto the road .. It is situated in a high - density business and retail area ... It borders the north side of the plot of land on which PERSON well is located . The latter , a site of considerable importance in terms of history and tourism , has long been considered sacred , and visited , by NORP . Thus , before its expropriation , the property was at the centre of “ religious tourism ” .", "Archaeological research indicates that the district of PERSON is an area that was settled in the period CARDINAL GPE It is therefore of historical and cultural value . In addition to the historical monuments which are visible above ground , the ruins of an ancient town have been discovered in the course of excavation works alongside the law courts ... , and the area has been placed under protection . ”", "In determining the value of the building , panel no . CARDINAL based its findings primarily on the construction price index published by ORG , specifically the category “ buildings requiring restoration ” . It stated its findings as follows :", "“ The building which is located on the disputed land is composed of CARDINAL floors , each with a living floor space of CARDINAL ORG , its total living floor space being therefore CARDINAL m² . It has been constructed from dressed stone and the architecture of the linking pieces is in the GPE style . It was designed as a residential building . The ground floor is in a simple [ architectural ] style , and the first floor has the features of dressed stone buildings . There is a balcony ... on the first floor . The dressed stone of the window arches and balcony is highly embellished . Thus , the disputed property has the features of buildings ... constructed in line with the LOC tradition , known as ' PERSON houses ' ( PERSON evleri ) . It has also been included in ORG inventory for the protection of the cultural and natural heritage . It was in this building that PERSON stayed during his visit to PERSON in DATE . In spite of its age , and having regard to the above - mentioned features , the building has been protected and maintained in good condition by its owners . In those circumstances , a depreciation rate of PERCENT has been decided on . As the building comes within class V , group D ( buildings requiring restoration ) under ORG circular of DATE ... , the approximate cost of construction per square metre ... has been set at GPE CARDINAL . ”", "Panel no . CARDINAL concluded that panel no . CARDINAL ( see paragraph CARDINAL above ) had valued the disputed building as an ordinary dressed - stone building , without taking account of its architectural features . It decided not to adopt those valuation criteria and assessed the building 's value at an initial TRL CARDINAL . It then reduced this amount to TRL CARDINAL,CARDINAL,CARDINAL,CARDINAL , noting that the building 's depreciation justified a reduction of PERCENT . However , it then increased this sum to GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL , holding that , in view of the building 's architectural , historical and cultural features , its value should be increased by PERCENT . After deduction of the expropriation compensation already paid to the applicant , the panel decided that the additional compensation should be TRL CARDINAL .", "A third panel of experts ( hereafter “ panel no . CARDINAL ” ) submitted a report on DATE , confirming all of the conclusions in the second expert report .", "On DATE the applicant requested a further expert report , on the ground that the CARDINAL previous reports had failed to take sufficient account of the building 's architectural and historical features in assessing its value .", "On DATE the court , after dismissing the request for an additional expert report , allowed part of the applicant 's claim and instructed the authorities to pay him ORG CARDINAL ( about EUR CARDINAL ) in additional compensation , with interest at the statutory rate , to be calculated from DATE .", "On DATE ORG set aside that judgment . It held that under LAW ( d ) of ORG no . CARDINAL ) , neither a building 's architectural or historical features nor those resulting from its rarity could enter into play in the assessment of its value . Consequently , a PERCENT increase in the amount of additional compensation could not be considered justified .", "On DATE the applicant petitioned for rectification of ORG judgment . He contested the amount of expropriation compensation and emphasised , inter alia , the absence of a legal criterion that would enable the value of buildings making up the country 's cultural and historical heritage to be calculated . He relied on LAW .", "On DATE ORG dismissed the applicant 's request for rectification .", "On DATE ORG complied with ORG judgment and fixed the amount of additional compensation at TRL CARDINAL ( about EUR CARDINAL,CARDINAL ) , with interest , to be calculated from DATE .", "On DATE ORG upheld the judgment of the first - instance court .", "On DATE ORG issued a payment order for ORG ( about ORG CARDINAL,CARDINAL ) , broken down as TRL MONEY in respect of additional compensation and TRL CARDINAL,CARDINAL,CARDINAL,CARDINAL in respect of interest .", "The case file shows that , following judicial proceedings which ended in DATE , the applicant received separate compensation for the land on which the building was constructed . According to information submitted by the ORG and uncontested by the applicant 's representatives , the compensation received following the expropriation of the land was CARDINAL new NORP liras ( TRY ) ( about EUR CARDINAL,CARDINAL ) .", "Section CARDINAL of the Cultural and Natural Heritage ( Protection ) Act provides :", "“ Real property which forms part of the cultural heritage may be expropriated in accordance with the principles set out below :", "...", "( d ) in calculating the compensation to be awarded for expropriation , the value resulting from a property 's age , rarity and artistic features shall not be taken into consideration . ”", "Section CARDINAL of the Expropriation Act provides :", "“ The criteria for determining expropriation compensation", "After having visited , with the judges , the site on which the property to be expropriated is situated ... and having obtained the opinion of the interested parties , the panel of experts formed in accordance with section CARDINAL shall draw up a report , taking into account :", "( a ) the type and nature of the property under consideration ;", "( b ) its area ;", "( c ) the features and factors likely to influence its value , and the valuation of each factor ;", "( d ) the tax declaration in respect of the property , where one exists ;", "( e ) NORP the values determined by the authorities at the date of expropriation ;", "( f ) for farmland , the potential profit on the date of expropriation if account is taken of the existing land - use and the site ;", "( g ) for construction land , the market value as determined by comparison with that of other equivalent plots of land sold under normal conditions prior to the date of expropriation ;", "( h ) for buildings , the official unit amount , the construction costs and the depreciation rate ;", "( i ) all other objective criteria likely to influence the value ... of the property to be expropriated .", "The panel shall determine the value of the property by mentioning in its report its finding in respect of each of the above - mentioned criteria , taking account of the statements of the interested parties and basing its findings on a reasoned valuation report .", "In determining the value of the property , no account shall be taken of the added value created by the initiative of the urban - planning or other department which lay behind the expropriation , nor of future profits arising from the various uses envisaged for it .", "... ”", "In numerous cases the CARDINALth ORG of ORG has quashed judgments delivered by lower courts which did not take account of the depreciation that the properties in question might have incurred as a result of their status as listed buildings ( see , for example , the judgments of CARDINAL DATE -CARDINAL/CARDINAL E. , CARDINAL K.- , DATE -CARDINAL/CARDINAL E. , CARDINAL K.- , CARDINAL May CARDINAL PERSON , CARDINAL K.- and DATE -CARDINAL/CARDINAL PERSON , CARDINAL K.- ) .", "“ Each ORG undertakes :", "NORP to take statutory measures to protect the architectural heritage ;", "NORP within the framework of such measures and by means specific to each State or region , to make provision for the protection of monuments , groups of buildings and sites . ”", "“ Each ORG undertakes :", "...", "NORP to prevent the disfigurement , dilapidation or demolition of protected properties . To this end , each ORG undertakes to introduce , if it has not already done so , legislation which :", "...", "( d ) allows compulsory purchase of a protected property . ”", "To date , CARDINAL countries have signed this convention , and CARDINAL countries have ratified it . GPE has not signed it . The text includes the following provisions :", "“ The Parties to this Convention agree to :", "( a ) recognise that rights relating to cultural heritage are inherent in the right to participate in cultural life , as defined in LAW ;", "...", "( c ) emphasise that the conservation of cultural heritage and its sustainable use have human development and quality of life as their goal ; ... ”", "“ The Parties recognise that :", "...", "( c ) exercise of the right to cultural heritage may be subject only to those restrictions which are necessary in a NORP society for the protection of the public interest and the rights and freedoms of others . ”", "“ No provision of this Convention shall be interpreted so as to :", "( a ) NORP limit or undermine the human rights and fundamental freedoms which may be safeguarded by international instruments , in particular , LAW ;", "( b ) affect more favourable provisions concerning cultural heritage and environment contained in other national or international legal instruments ;", "( c ) create enforceable rights . ”", "“ DATE deals with the rights and responsibilities of individuals in respect of cultural heritage .", "...", "( c ) The clause approving a restriction on the exercise of rights and corresponding freedoms relies for its interpretation clearly upon the spirit and arrangements of LAW . Public interest considerations ( see LAW , for example to protect important elements of the cultural heritage , must always be balanced against the need to protect individual property rights . ”", "In ORG member States , it is accepted in principle that , in order to satisfy the requirements of the principle of proportionality , an amount of compensation that is “ fair and just ” ( GPE ) , “ fair and payable in advance ” ( GPE ) , “ fair and payable immediately ” ( GPE ) , “ adequate ” ( GPE ) or “ appropriate ” ( GPE and GPE ) , or that is based on the “ value ” ( GPE ) , “ full value ” ( GPE ) , “ current value ” ( GPE ) , “ market value ” ( GPE ) or the “ fair price ” ( GPE ) of the expropriated property must be determined . In GPE , a property 's historical value is held to be one of the criteria used in assessing its “ intrinsic qualities ” ( see ORG v. PERSON [ DATE ] CARDINAL Ch CARDINAL , and GPE v. ORG ( DATE ) CARDINAL LT CARDINAL ) . In GPE , the ORG must take account of the building 's possible historical status in assessing the level of compensation . In GPE , the expropriation legislation provides that the public authorities must take account of any particular feature of the building in determining the level of compensation . In GPE , the expropriation of buildings that are of artistic , archaeological or historical value is subject to a special procedure , and the amount of compensation can not be fixed at an amount lower than that which would result from application of the general procedure set out in the legislation on expropriation . None of GPE , nor GPE or the GPE , specifically rules out taking an expropriated property 's architectural and historical features into account when determining the compensation to be awarded ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant was suspected of committing various financial irregularities . Criminal proceedings were instituted in this respect on CARDINAL DATE . On DATE the applicant was arrested .", "On CARDINAL DATE the applicant was released on bail .", "On DATE the applicant was charged with appropriating property of another and embezzlement . On the same date he was again arrested .", "On DATE the ORG committed the applicant for trial .", "On DATE the court remitted the case to the prosecution for further investigative measures to be carried out .", "Upon the prosecutors ' appeal , on DATE the ORG quashed the above decision , ordering that trial should recommence .", "On DATE GPE adjourned the examination of the case in order to conduct an audit of an enterprise owned by the applicant . On DATE the applicant was released on bail .", "During the period from DATE until DATE the investigative authorities conducted the audit of the applicant 's company .", "On DATE the trial recommenced .", "On DATE the ORG convicted the applicant on CARDINAL counts , obtaining property of another and improper operations with currency , sentencing him to DATE imprisonment . Civil damages in the amount of CARDINAL NORP litai ( ORG ) were also ordered against him .", "Upon the applicant 's appeal , on DATE the ORG quashed the conviction , referring the case back to the first instance court for a fresh trial .", "On DATE ORG quashed the appeal judgment , returning the case for a fresh examination at appellate instance .", "On DATE the ORG acting as a court of appeal pronounced a new judgment , acquitting the applicant on CARDINAL of the charges against him ( obtaining property of another ) . However , his conviction for improper currency operations stayed . The sentence was reduced to DATE imprisonment . No civil damages were ordered against the applicant .", "The applicant submitted a cassation appeal which is currently pending before ORG ." ]

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[ "PERSON and PERSON , who are NORP nationals , were born on DATE in PERSON ( GPE ) and on DATE in GPE ( GPE ) respectively .", "They were represented before the ORG by Mr PERSON , of the GPE am FAC , and PERSON , of GPE .", "The applicants are the parents of PERSON , a suspected member of ORG ( ORG ) who died on DATE following an operation carried out on DATE by “ ORG ” , a special unit of ORG ) , at Bad PERSON station ( GPE - West Pomerania ) . The purpose of the operation was to arrest PERSON and an accomplice , PERSON . There was an exchange of fire during which PERSON and a police officer were killed and another police officer and a railway employee were wounded . PERSON was arrested . Afterwards PERSON ’s body was taken to ORG , where he was pronounced dead .", "On DATE Professor PERSON of ORG submitted his autopsy report to ORG . He stated in his report that PERSON had died from a bullet which had passed through his brain from right to left and from loss of blood due to CARDINAL other bullets fired through his abdomen .", "On DATE the applicants filed an application to join criminal proceedings ( PERSON ) against persons unknown for the murder of their son .", "The public prosecutor ’s office then instructed Professor PERSON to prepare CARDINAL further expert reports on the firearms used during the operation in question and on certain particular aspects of PERSON ’s wounds . Those reports were submitted DATE .", "On DATE Professor PERSON of ORG in GPE submitted a second autopsy report ( ORG ) , at the request of PERSON ’s parents , in which he too concluded that PERSON had died as a result of a shot fired through his head . He also agreed with the conclusions of the first autopsy report .", "On DATE the GPE police submitted an interim ballistics report .", "ORG also instructed Professor PERSON of ORG to prepare CARDINAL further interim expert reports on ORG ’s injuries and imprints ( Spurengutachten ) . Those reports were filed DATE .", "On DATE ORG began an investigation in respect of CARDINAL members of ORG who , according to a witness named PERSON , had been right next to PERSON when he was lying on one of the tracks at Bad PERSON station after falling to the ground .", "On DATE Professor PERSON submitted a supplementary expert report on the marks found on the clothes of the police officers who had taken part in the operation ( Spurengutachten ) . According to him , CARDINAL jacket had traces of ORG ’s blood on it , but it had not been possible to determine with certainty how they had appeared .", "On DATE and CARDINAL and DATE the GPE police forensic laboratory submitted interim reports on , among other things , the projectiles found at the place where the operation had been carried out and the cause of PERSON ’s wounds .", "On DATE Professor PERSON submitted his general report in which he addressed , among other things , the question whether the fatal gunshot had been fired by PERSON himself or by another person . He concluded that the trajectory of the bullet was typical of a suicide and that the evidence did not point to an accident ( unfallbedingte LOC ) . In his opinion , the fact that there were very few traces of blood on PERSON ’s gun , from which the fatal shot had been fired , meant that it had fallen to the ground before it could be sprayed with the blood and tissue ( Spray aus Blut- und Gewebsteilen ) caused by the penetration of the bullet . It necessarily followed that his hand had been immediately paralysed , as was usual after this type of suicide . Furthermore , if the fatal shot had been fired by another person , that person ’s clothes would have been spattered with blood and tissue , whereas the investigations had not yielded any findings of that kind .", "In a letter of DATE Professor ORG , a ballistics expert , stated that the bullets which had hit PERSON in the abdomen had been fired from a distance of QUANTITY . In a further expert report ( of DATE ) he concluded that the grazes found on the victim ’s hand had in all likelihood been caused by the ballast on which he was lying .", "On DATE Professor PERSON , Director of ORG , submitted an expert report in which he concluded that , having regard to the results of the autopsy carried out on PERSON , he would still have been capable , after falling onto the track , of shooting himself in the head with the bullet which killed him .", "On DATE the GPE police forensic laboratory submitted a full expert report on the circumstances of PERSON ’s death .", "On DATE ORG decided to discontinue the proceedings under LAW of LAW ( “ ORG ” ) . It drew the conclusion that the police officers had shot PERSON in self - defence and that PERSON had himself fired the bullet which went through his head , with the intention of killing himself . The public prosecutor ’s office based that conclusion on a CARDINAL-page report ( Abschlußvermerk ) in which the special unit in charge of investigating the case had given an account of all its inquiries . The report stated , among other things , that during the course of those inquiries evidence had been heard from CARDINAL witnesses .", "On DATE the applicants appealed to ORG of ORG ( “ the Principal Public Prosecutor ” ) against the decision to discontinue the case . On DATE they filed pleadings in support of their appeal , attaching CARDINAL expert reports prepared at the request of the applicants by Professor PERSON , Director of ORG .", "In the first report , dated DATE , Professor PERSON concluded that as a result of a certain number of serious flaws in the investigation it was no longer possible to determine with certainty whether the fatal shot had been fired by PERSON himself or by another person . With regard to the arguments advanced by Professor PERSON , he considered that , since the gun in question had indeed been spattered with blood after the shot had been fired , it was scientifically impossible to conclude that ORG had committed suicide ; as for the finding that no clothes had been spattered with blood or tissue , this had been contradicted by Professor PERSON . In short , it was impossible to prove that PERSON had committed suicide and impossible to rule out the theory that another person had fired the fatal shot . As the evidence stood , it was not possible to reach a definite conclusion . Lastly , Professor PERSON suggested examining how the grazes on the back of PERSON ’s right hand had been caused and checking how the distance from which the shots had been fired had been measured , as this appeared open to criticism from a scientific point of view .", "In his second expert report ( ORG ) , dated DATE , Professor PERSON concluded that the grazes and redness found on the back of PERSON ’s right hand could have been inflicted by the tip of the hammer of PERSON ’s gun while someone was attempting to wrest it from him ( streifender FAC Hahnende i MONEY ) .", "Furthermore , in their pleadings filed in support of their appeal , the applicants complained of certain flaws in the investigation which proved , in their opinion , that there had been a deliberate attempt to cover up evidence as to what had actually happened . They gave as examples the fact that ORG ’s hands had been washed on his arrival at FAC , that an analysis of the fingerprints on PERSON ’s gun had been ordered too DATE after they had been obliterated DATE and that the jacket of CARDINAL of the police officers , which had bloodstains on it , had disappeared .", "On DATE Professor PERSON made observations , at the request of ORG , on the expert reports submitted by Professor PERSON on DATE and CARDINAL DATE . According to Professor PERSON , Professor PERSON had based his conclusions on numerous inaccurate findings ( Anknüpfungspunkte ) and there were a number of contradictions in his reasoning , so there were no grounds for revising the conclusions of the expert report of DATE .", "On DATE the applicants sent ORG observations ( PERSON ) by Professor PERSON , dated DATE , on the expert report submitted by Professor PERSON on DATE . Professor PERSON confirmed his previous conclusions that it was impossible to prove that it had been suicide just as it was impossible to rule out the theory that another person had been involved . He also maintained that someone could have wrenched PERSON ’s gun out of his grasp .", "On DATE ORG confirmed the decision to discontinue the case . For murder to be made out , it would , in his opinion , have been necessary for CARDINAL of the police officers to have grabbed hold of PERSON ’s gun during the exchange of shots between PERSON and the police quad chasing him . None of the witnesses , however , had made a statement to that effect . Despite the fact that the evidence of certain police officers had to be treated with care and despite a number of residual doubts , the conclusion drawn by ORG , namely that PERSON had committed suicide , appeared not only possible , but highly probable . It did not , in any event , contradict the available evidence . Moreover , the investigation had not revealed any evidence on which to bring a charge against CARDINAL of the police officers or any other person . Lastly , there was nothing to suggest that a further investigative measure DATE and , in particular , a further expert report DATE would reveal conclusive fresh evidence .", "With regard to Professor PERSON ’s conclusions in particular , ORG considered that they were not such as to justify reopening the investigation . The forensic experts disagreed about the course of events and Professor PERSON himself had merely stated that his conclusion was more likely than the others , without thereby suggesting that the others were wholly improbable . Given those reservations , the situation did not merit reversing the decision of ORG to discontinue the case .", "ORG acknowledged that the statements of the police officers heard as witnesses contradicted each other on many points , but considered that the situation could no longer be remedied at that stage by ordering a further investigative measure . He also accepted that an error had been committed in not ordering a thorough examination of PERSON ’s hands , which had instead been washed as soon as he had arrived at the hospital . Likewise , an inquiry as to why PERSON ’s hands had been washed before they could be examined should have been ordered . However , a further investigative measure would not , in ORG view , remedy the consequences of those errors .", "The same was true of the fact that a biological test had been carried out on PERSON ’s gun before the fingerprints had been taken , since a further investigative measure could not bring back fingerprints which had disappeared as a result of an error . Lastly , ORG did not consider it conclusive that the jacket of one of the police officers had disappeared from the premises of the GPE police laboratory since it had disappeared after that department had carried out all the scientific tests .", "On DATE Professor PERSON made observations , at the request of ORG , on the expert reports submitted by Professor PERSON . According to Professor PERSON , the grazes found on PERSON ’s hand could not have been caused merely by someone seizing his gun . They were more likely to have been caused by sharp objects , in this case the ballast on which PERSON had been lying after his fall and against which his hand had rubbed while he was being picked up so that he could be taken to hospital .", "On DATE Professor PERSON made observations on the decision of ORG upholding the decision to discontinue the case . He explained and confirmed the theories set out in his previous expert reports .", "On DATE the applicants appealed to ORG under LAW ORG against the decision of ORG . They requested that CARDINAL members of ORG be charged .", "On DATE ORG dismissed the applicants’ appeal . It pointed out that under LAW ORG there had to exist a sufficient suspicion ( hinreichender PERSON ) against a person for a prosecution to be brought . For that to be established there had to be a greater probability , in the light of the results of the preliminary investigation , that the person in question would be convicted than acquitted , which was not so in the present case .", "ORG took as the point of departure for its reasoning the fact that the victim had been killed by a shot fired from his own gun , which had been placed against the victim ’s right temple or in that immediate area . For murder to be made out , someone would have to have seized the gun . There was nothing in the investigation to show that that had happened . The investigation had established that throughout the police ORG pursuit of PERSON they had been at a distance of QUANTITY from the victim . The gun could not therefore have been seized from him during that stage of the events . Furthermore , it had not been established that someone had seized the gun while PERSON was lying on the track following his fall after the shots had been fired at him : none of the witnesses had seen anyone take hold of the victim ’s gun and none of the experts – who had , moreover , come to diverging conclusions – had been able to state , on the balance of probabilities ( mit der hier erforderlichen überwiegenden GPE ) , that that was what had happened . Whereas Professor PERSON had ruled out the possibility that the grazes on the back of PERSON ’s hand had been caused by someone violently seizing his gun , Professor PERSON had come to the opposite conclusion , while acknowledging that another possible explanation for the wounds was that in order to take PERSON to the hospital it had first been necessary to free his right hand , which was trapped between the ballast and his buttocks . Professor PERSON , for his part , had mooted a third explanation relating to a subsequent phase in the events , while Professor PERSON had concluded that it was “ highly unlikely ” ( höchst unwahrscheinlich ) that someone had violently seized PERSON ’s gun .", "Even if it were conceded , ORG went on , that someone had violently seized the gun , it would still be necessary , in order to explain the injury to PERSON ’s temple , for that person to have shot him by placing the barrel of the gun against his temple while he was lying on the track , a scenario which had not been confirmed by the investigation either . Most of the witnesses had stated that after the exchange of shots between the police officers and PERSON and PERSON ’s fall they had heard no further shots . Moreover , the investigation had revealed that the victim had been hit by CARDINAL bullets fired from a distance of QUANTITY : CARDINAL bullets had gone through the victim horizontally and CARDINAL had travelled upwards through his body . In order to have fired the shot which hit the victim ’s temple , a police officer would have to have been right next to him on his left - hand side after he had fallen down . None of the witnesses , however , had seen a police officer bend down to the left of PERSON at that moment . On the contrary , all of them had stated that the QUANTITY police officers posted next to PERSON at that moment had been holding their guns well above PERSON ’s head .", "Admittedly , CARDINAL witnesses claimed to have seen those QUANTITY police officers use their guns at that moment . Their evidence , however , was both incomplete and in blatant contradiction with other aspects of the investigation and therefore unreliable . This was particularly the case of witness PERSON , who , during questioning , had given CARDINAL different and contradictory versions of events . Furthermore , each version had contained elements which were incompatible with objective and verified evidence gathered in the investigation . With regard to witness J. , whose statement had consisted merely in a telephone call to ORG , it had not been possible to establish his identity with certainty and it had therefore not been possible to check his evidence , parts of which , moreover , blatantly conflicted with some of the objective evidence . Lastly , witness PERSON claimed to have seen everything without , however , being able to give a plausible explanation for his presence at Bad PERSON station at the material time . The explanation he had given , namely that he was on his way to a friend ’s house , had been contradicted by the friend .", "ORG held , on the other hand , that all the evidence in its possession supported the conclusion that PERSON had committed suicide . This was borne out by , among other things , the quantity of blood found on the gun and the position of PERSON ’s head . Furthermore , the traces of blood on the victim ’s temple suggested that the shot had been fired before he was lying completely flat , which supported the supposition that he had killed himself while falling backwards under the effect of his wounds . That theory was confirmed by the fact that , according to all the witnesses , PERSON had remained motionless after his fall . The fact that none of the witnesses had seen the victim shoot himself in the head could be explained by the fact that many events had been happening at the same time ( PERSON ) and that from where they were standing the witnesses could see only the victim ’s left arm whereas he had used his right hand to fire the shot .", "Lastly , ORG considered that even if PERSON ’s hands had been examined , that would not have provided evidence on which to bring a charge of murder since they had necessarily borne the traces ( PERSON ) of the CARDINAL shots he had fired at the police officers . As for any fingerprints which might have been found on PERSON ’s gun , they would not necessarily have proved that someone had shot him because they might also have been placed there while the gun was being carried away . Lastly , it was of no consequence that the jacket of one of the police officers had disappeared in GPE since the other evidence gathered during the investigation had ruled out the possibility that the shot could have been fired by a person other than PERSON himself .", "In conclusion , ORG found that it had been proved with a degree of probability approaching certainty ( mit an Sicherheit grenzenden PERSON ) that PERSON had killed himself as he fell onto the track . The argument advanced by the applicants therefore lacked the degree of probability necessary for a reopening of the investigation to be ordered .", "On an appeal by the applicants , ORG decided on DATE not to examine the case .", "Under LAW and LAW ( GPE – “ ORG ” ) the public prosecutor ’s office must prosecute ( ORG ) a suspect if the results of the investigation justify instituting criminal proceedings . It does so by lodging an indictment ( PERSON ) with the appropriate court . If the results of the investigation do not justify instituting criminal proceedings , the public prosecutor ’s office discontinues the case ( Einstellung des PERSON ) .", "Article CARDINAL ORG governs appeals which , in proceedings to enforce a prosecution ( ORG ) , can be brought by a civil party against a decision to discontinue a case . The civil party can first lodge an appeal ( Beschwerde ) with the member of the public prosecutor ’s office immediately superior to the one who decided to discontinue the case . If that appeal is dismissed , the civil party can request ORG to rule on whether a charge can be brought ( Antrag auf gerichtliche GPE ) ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE . He is a writer , translator and publisher and lives in GPE . ORG were represented by their Agent , Mr PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE the applicant published a book called “ Narcotics – A guide ” ( GPE – przewodnik ) . The book had the following subtitle : “ Part CARDINAL : Soft drugs . Marijuana – LSD-CARDINAL – Mushrooms . History – Production – How to use DATE Dangers . ”", "The book opened with the following introduction :", "“ From the author :", "I am aware of the fact that among persons knowledgeable on the subject , the use of the word ‘ narcotics’ in the title may be controversial because of the complexity surrounding the meaning of that word . I would therefore like to add the following explanation .", "The word ‘ narcotics’ actually means agents used in surgical anaesthetics and in painkillers not used in surgery ( for example , morphine ) . However , in common parlance it is understood much more widely , probably because an appropriate term , akin to the LANGUAGE ‘ drugs’ , for instance , has not been established in the NORP language . I think that the broad meaning given to the word ‘ narcotics’ in common parlance stems from the publication ‘ GPE and the unwashed soul’ by ORG , and from the way the word is currently used by the media .", "Probably the most appropriate title for this book would be : ‘ Psychosocial implications of the pharmacodynamics of psychoactive agents and their neurophysiological , cultural , qualitative and quantitative determinants.’ However , in my view this title is slightly too long for a book aimed at the general public .", "At the same time , I would like to state that it is not my intention in any way to solicit , encourage or propagate the use of psychoactive agents .", "The aim of this publication is to fill the alarming void which exists in our country resulting from widespread ignorance and lack of knowledge about the basic issue referred to ( mistakenly and often improperly ) as drug addiction . ”", "The book was divided into the following chapters :", "On the back cover of the book the applicant included a quotation that began as follows :", "“ People do not take drugs because they are bad . They do not take drugs out of perversity . They take them because the drugs make them feel good . Very good indeed . ”", "The quotation was attributed to PERSON , a professor at ORG in GPE .", "On an unspecified date in DATE the LOC district prosecutor started an investigation into allegations that the applicant ’s book contained instructions on the production and use of drugs . The prosecutor appointed experts to assess the content of the book .", "On DATE the district prosecutor charged the applicant under section CARDINAL of ORG DATE with inciting readers of his book to use drugs .", "On DATE the applicant was indicted before ORG .", "On DATE the applicant was tried by ORG . He was convicted as charged and sentenced to a fifteenmonth prison term suspended for DATE and a fine of MONEY ( ORG ) . The court gave the following reasons for the applicant ’s conviction :", "“ In view of the evidence before it the ORG considers that there can be no doubt as to PERSON", "DATE and DATE PERSON published his book entitled ‘ GPE – A guide DATE Part CARDINAL : Soft drugs’ . He distributed the book throughout the country . CARDINAL of the reasons the defendant wrote the above book was for financial gain . This was admitted by the defendant , who said that all economic activity was aimed at financial gain .", "The defendant also acted in pursuit of personal goals since he published his book and sold it throughout the country , presenting it as his contribution to the discussion concerning the legalisation of narcotics , in an attempt to establish himself as a published author .", "The defendant referred in his book to his own claims as well as citing numerous quotations from NORP and foreign publications . In the same vein , he intentionally selected information in support of his claims designed to create the impression not just that the narcotics described were not dangerous , but that taking them benefited human mental and physical health . In order to achieve this aim , the defendant omitted numerous pieces of information which were known to him and which showed the harmful influence of these psychoactive agents on the human body .", "Another fact which it is important to point out is that the defendant addressed his book mainly to young people , as demonstrated by the quotation printed on the back cover . The ORG considers that reading this quotation in a bookshop is liable to make a potential reader interested in the content of the book .", "The ORG is of the view that the aim of the message contained in the book was to persuade ... readers to try out CARDINAL of the narcotics described therein when the opportunity arose . In order to achieve this aim , the defendant sought to break down the psychological barriers normally encountered by reasonable individuals by choosing his words carefully , using analogies , outlining what he saw as the numerous qualities and advantages for the prospective consumer , and hiding or referring only in general terms to several dangerous consequences of drug use . No individual knows himself sufficiently well to be certain whether and how a certain narcotic may influence his psyche .", "The book in question was intended to be read in particular by young people . It is widely known that different types of narcotics , including those described by the defendant , are trafficked among high - school students and even among older pupils in primary schools . Moreover , it is known from radio , television and the press that the narcotics described by the defendant are taken by people , some of them teenagers , at private social events and in discotheques . Experience and observation of the environment tell us that persons of such a young age have not developed the necessary degree of self - criticism to allow them to approach the content of PERSON book with the required objectivity .", "The ORG considers that the average reader will not analyse in depth the philosophical content of the book , but will remember simple facts designed to show that the narcotics described bring immediate pleasure and unforgettable experiences – including experiences of a religious nature DATE and , more importantly , that taking the doses suggested by the defendant ... will not have any negative consequences for life and health .", "The ORG considers , therefore , that the approach taken by the defendant , consisting of publishing selected information , was aimed at inducing and making it easier for readers to take the narcotics described .", "The defendant published detailed information in his book on how to obtain ingredients and prepare them . He also gave instructions on the doses to be taken and described the states of mind which might be experienced . His actions were therefore aimed at making it easier for the reader to use narcotics .", "The defendant did not deny that access to narcotics in GPE was very easy . It is well known from the media that there are places where almost anyone who wants to experiment with a chosen narcotic may buy it . In the context of this widely known information , the defendant advised readers to buy ingredients from verified sources .", "The ORG is of the view that the average young person , after reading the book , buying narcotics and , under the influence of the book , forgetting his or her fears and apprehensions , is liable to decide unhesitatingly to take the narcotics . After reading the book he would feel certain that he was unlikely to become addicted and that he would not experience any negative effects , while being able for DATE to experience new states of mind without fear .", "In view of the above , the ORG has come to the conclusion that the actions of the defendant , PERSON , fit the characteristics of the misdemeanour described in section CARDINAL ) of ORG of DATE . ...", "When sentencing the defendant , the ORG took into account , as a factor counting against him , the significant degree of social harm which could be caused by his actions in the context of increasing drug addiction among young people .", "The ORG also took into account the following circumstances in the defendant ’s favour : the fact that he had no criminal record , the positive opinion of his neighbours and the fact that CARDINAL copies of the book had been printed , making it less accessible to potential readers in GPE .", "In sentencing the defendant the ORG further took into account the profit he made from the sale of the book , his ability to earn a living and the fact that he has to support a wife and CARDINAL children .", "In view of the above - mentioned circumstances in the defendant ’s favour , his personal circumstances and his lifestyle , which justify the assumption that he will comply with the law and will not reoffend , the ORG has decided to suspend his sentence . ... ”", "The applicant appealed against his conviction but the appeal was dismissed by ORG on DATE . The appellate court fully subscribed to ORG findings and agreed that the book was actually a “ guide for drug addicts ” . The court was of the opinion that the introduction to the book , in which the applicant denied his “ intention in any way to solicit , encourage or propagate the use of psychoactive agents ” , was in complete contradiction to the content of the book . The court also relied on the opinions of CARDINAL experts who considered the book to be “ a set of instructions for drug addicts [ and ] incitement to the use [ of drugs ] ” given that the applicant was of the view that narcotics were “ less harmful [ than generally assumed ] or not harmful at all ” .", "On DATE the applicant lodged an appeal on points of law with ORG . Between DATE and DATE the case lay dormant before ORG .", "On DATE ORG dismissed the applicant ’s appeal on points of law . It followed the lower court ’s findings and agreed with its opinion that the applicant ’s book incited readers to use drugs and facilitated the taking of drugs by young people .", "LAW , which was adopted by ORG on DATE and came into force on DATE , states :", "“ GPE shall ensure freedom of the press and other means of social communication . ”", "LAW , which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms ( the principle of proportionality ) , provides :", "“ Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic ORG for the protection of its security or public order , or to protect the natural environment , health or public morals or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . ”", "LAW guarantees freedom of expression . It states , in so far as relevant :", "“ The freedom to express opinions and to acquire and disseminate information shall be secured to everyone . ”", "For more details on the constitutional provisions , see GPE v. GPE DATE . ) , no . CARDINAL , DATE .", "Section CARDINAL(CARDINAL ) of ORG of DATE reads as follows :", "“ Anyone who , for financial gain or in pursuit of personal goals , provides another person with narcotic or psychotropic products , facilitates their use or incites others to use them , shall be liable to a term of imprisonment of CARDINAL . ”", "On DATE the Law of CARDINAL DATE on complaints about a breach of the right to trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) came into force . It lays down various legal means designed to counteract and/or afford redress for the undue length of judicial proceedings . For a more detailed exploration of the relevant domestic legal provisions , see PERSON v. GPE DATE . ) , no . CARDINAL , § § DATE , ECHR CARDINAL", "Section CARDINAL of the CARDINAL Act reads , in so far as relevant :", "“ ( CARDINAL )", "Section CARDINAL lays down transitional rules in relation to applications already pending before the ORG . It reads , in so far as relevant :", "“ ( CARDINAL ) Within 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 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 the ORG was lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case . ”" ]

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[ "PERSON , who used to work for a security firm , lives in GPE .", "On DATE she brought proceedings against her former employer , ORG , in the GPE magistrate ’s court ( pretore ) for unfair dismissal .", "At the first hearing , on DATE , the magistrate raised of his own motion the question whether certain legislative provisions were compatible with the constitutional principle of equality between men and women in the field of employment . On DATE he stayed the proceedings pending the decision of ORG ( Article CARDINAL of the Code of Civil Procedure ) .", "The Constitutional Court gave judgment on DATE ; the text of its judgment was filed at the registry on DATE .", "The applicant resumed the proceedings on CARDINAL DATE and they ended on CARDINAL May with a friendly settlement ." ]

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[ "NORP In DATE the applicant , born in DATE , was a soldier of the regular forces in ORG . On DATE the Special Investigations Branch of the military police ( “ SIB ” ) began investigating charges against him in relation to the misuse of travel warrants . The applicant was due to be interviewed on CARDINAL DATE and went missing from his unit . On DATE he was arrested by the civilian police and returned to his unit . His commanding officer dealt with the charge summarily and sentenced him to , inter alia , CARDINAL days’ imprisonment . The applicant served DATE ( after remission for good conduct in detention ) .", "The applicant was therefore due for release on CARDINAL DATE but his detention continued on the basis of the suspected offences that were being investigated by the ORG . On CARDINAL and DATE the applicant was interviewed by the ORG and he was advised by a civilian solicitor during those interviews . The applicant then instructed his current representative on DATE . On DATE the applicant was brought before his commanding officer and a charge sheet recording CARDINAL charge under LAW DATE relating to the making of fraudulent motor mileage claims was read to him .", "On DATE a further charge sheet was read to the applicant which included CARDINAL additional and similar charges ( obtaining property by deception ) and the applicant was remanded for trial by court - martial . On DATE the applicant applied for legal aid under the army legal aid scheme , which was granted as from DATE .", "NORP In DATE the applicant commenced habeas corpus proceedings in the ORG requesting his release on the grounds , inter alia , that he had not been given a formal hearing at which he was informed of the case against him and was able to present his own case for release , and on the grounds of the delay in holding the court - martial . The army authorities admitted that due to an “ administrative oversight ” the applicant had not been charged until DATE . On DATE the army authorities undertook to the ORG to release the applicant from close to open arrest and he was so released on DATE . The form of order of ORG recorded the pleadings before it and the ORG ’s undertaking to release the applicant , but included no other order except to award costs to the applicant . The applicant was released from open arrest in DATE and was sent on leave .", "On DATE the applicant instituted further proceedings in the High Court for compensation from ORG in respect of his detention from DATE to DATE . The applicant alleged unlawful detention , breach of a duty of care , false imprisonment and trespass to the person . The defence filed by the army authorities in those proceedings accepted that the applicant had not been charged until DATE , initially because the investigation of the charges had been impeded by his absence and , subsequently , due to an error associated with the replacement of the applicant ’s commanding officer . The authorities therefore accepted that the applicant ’s detention DATE and DATE was unlawful . Various other admissions were made by the army authorities as regards the failure properly to complete certain delay reports , but it was denied that these latter omissions rendered the applicant ’s subsequent detention unlawful . The applicant had also claimed , and the army authorities denied , that there had been a violation of the rules of natural justice and of LAW .", "The matter was settled on DATE , the applicant being paid a substantial sum of money and his costs .", "Although a district court - martial was initially convened by order of DATE to try the applicant , it was postponed on a number of occasions . In DATE the applicant was charged with further but similar offences and , on DATE , the army authorities directed that the applicant be tried by court - martial on the CARDINAL outstanding charges against him . On DATE the applicant was tried by general court - martial . He pleaded guilty to offences of obtaining property by deception to the value of £ MONEY and was sentenced to CARDINAL months’ imprisonment of which he was to serve DATE . The reviewing authority later reduced this sentence to CARDINAL months’ imprisonment and the applicant ’s appeal to ORG is pending .", "At the relevant time the provisions governing the prosecution and pre - trial detention of accused members of the army were contained in LAW DATE ( “ the DATE LAW ) , in the Rules of Procedure ( Army ) DATE ( “ the DATE LAW ) and in FAC for the ORG DATE ( “ the Queen 's Regulations ” ) .", "Subsequent to the relevant facts of the present case , the law has been amended by , inter alia , LAW ( see the GPE v. the GPE judgment of DATE , Reports of Judgments and ORG , p. CARDINAL , § § CARDINAL ) and by the Investigation and Summary Dealing ( Army ) Regulations DATE .", "NORP The legal provisions relevant to the present application are set out in detail in the judgment of ORG in the case of PERSON v. the GPE ( judgment of DATE , to be published in the Official Reports of selected Judgments and Decisions ) . The main provisions are summarised below .", "In general terms , the commanding officer of an accused retains numerous powers and duties in relation to the arrest and pre - trial detention of an accused and in respect of the investigation and subsequent prosecution of charges . If the accused is a soldier ( as opposed to an officer ) , the commanding officer 's powers are broader as regards the investigation and pursuit of charges against an accused .", "Any allegation that a person subject to military law has committed an offence under LAW must be reported to that person 's commanding officer . The latter may investigate the charge ( section QUANTITY ) and may issue a warrant for the arrest of a person who is accused of certain charges .", "Subsequently the commanding officer of an accused must , unless it is impracticable , within TIME of becoming aware that an accused is detained , have such person brought before him , inform him of the charge against him and begin to investigate it . If the investigation has not begun within TIME , the commanding officer must report the case to a higher authority together with the reasons for the delay in commencing the investigation ( Rule CARDINAL of the DATE Rules ) .", "Commanding officers are responsible for ensuring that in each case the need to keep an accused in detention , together with the form of that detention , is kept under constant review ( paragraph CARDINAL of ORG ) . However , ultimate responsibility initially lies with the officer convening the court - martial and , as the pre - trial detention continues , with the convening officer ’s superior officer and , finally , with the Commander in Chief of the accused ( paragraphs CARDINAL and CARDINAL ) .", "If the detention of an accused is considered necessary , the category of detention ( close arrest or open arrest ) is to be determined in the interests of the service and by the nature of the alleged offence . Generally , a person is to be placed under close arrest only when confinement is necessary to ensure his safe custody or to maintain discipline . The circumstances which would warrant placing an accused under close arrest include those where the accused is deliberately trying to undermine discipline , is likely to injure himself or others , or is likely to suborn witnesses , where he has not surrendered but has been apprehended as an illegal absentee , or has habitually absented himself , and where , having regard to the nature or prevalence of the alleged offence which is under investigation , it is undesirable in the interests of discipline that he should be at large or allowed to consort with his comrades ( paragraph CARDINAL of LAW ) .", "The commanding officer is responsible for the compilation of the abstract of evidence during the investigation . The abstract consists of the evidence of each witness considered necessary to prove the charge . Once it is compiled , the accused is given a copy , he is cautioned as to the use that could be made of any evidence he may submit and statements submitted by the accused are attached to the abstract of evidence ( Rule CARDINAL of the DATE Rules ) . The pamphlet entitled “ Rights of a Soldier ” describes the purpose of the extract of evidence as , inter alia , to “ provide a brief for the prosecutor at trial ” and to inform the accused of the evidence which will be given at trial .", "The commanding officer can also decide how a charge will be proceeded with after investigation . The commanding officer can deal summarily with or dismiss certain charges and can stay the proceedings against an accused ( sections CARDINAL and ORG of the DATE Act ) . He can also decide that the accused should be tried by court - martial and he must take the necessary steps in this respect ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW ) . The necessary steps include ( LAW ) sending to a higher authority a draft charge sheet signed by the commanding officer , the abstract of evidence , a statement of character together with the service record of the accused , and the commanding officer ’s recommendation as to how the charge should be proceeded with ( for example , by district or general court martial ) . It is the higher authority who takes the final decision as to whether a court - martial is to be convened , and it is the convening officer of that court - martial who finally decides on the charges to be retained against an accused , although the latter generally does so by countersigning the draft charge sheet submitted by the commanding officer ." ]

[ "5" ]

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

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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 ORG by Ms B. GPE , a lawyer practising in ORG . The respondent Government were represented by their Agent , Mr J. PERSON , of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the applicant was arrested by the police .", "On DATE the ORG remanded him in custody on a charge of attempted extortion . On DATE the applicant was released from detention .", "On DATE ORG stayed the criminal proceedings against the applicant as his co - accused , a certain Mr PERSON , had gone into hiding . On DATE the prosecution service resumed the proceedings in order to prepare an extradition request in respect of PERSON , who had been arrested in GPE . On DATE the proceedings were stayed again .", "In DATE the bill of indictment was submitted to ORG .", "On DATE the ORG ordered that the applicant be remanded in custody for DATE . It found that the applicant had not collected the court ’s summons and that he did not reside at the address indicated to the prosecution . In those circumstances a copy of the bill of indictment could not be served on the applicant and the hearing could not commence . Consequently , ORG found that the applicant had obstructed the proceedings .", "On DATE the applicant was arrested and placed in detention . On DATE the applicant ’s lawyer appealed against the detention order of DATE . On DATE the ORG quashed the impugned detention order . The applicant was released on DATE .", "It appears that the proceedings are pending before ORG .", "In DATE the applicant published the first issue of the “ Information Bulletin of ORG ” . In the article entitled “ The prosecutor ’s son breaks the law ” the applicant alleged that a prosecutor S.S. influenced the outcome of the criminal proceedings against his son , who had been involved in a traffic accident .", "On DATE ORG brought a private prosecution against the applicant , alleging that he had been defamed . He requested ORG to take over the prosecution , arguing that the public interest so required .", "On DATE the Ząbkowice Śląskie District Prosecutor opened the investigation into the case . On DATE the prosecutor lodged a bill of indictment with ORG . The applicant was indicted on the charge of defamation under LAW . In particular , the prosecutor alleged that in the bulletin the applicant imputed to S.S. “ unlawful behaviour in order to lower him in public opinion and undermine public confidence in his capacity to perform the duties of a prosecutor ” .", "On an unspecified date in DATE ORG transmitted the case to ORG which had jurisdiction to hear it .", "On DATE the ORG convicted the applicant under LAW of defamation committed through the mass media . It sentenced him to CARDINAL months’ imprisonment suspended for DATE .", "The applicant appealed against his conviction but his appeal was dismissed on DATE by ORG .", "Article CARDINAL provides as follows :", "“ GPE shall ensure freedom of the press and other means of social communication . ”", "LAW , which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms ( the principle of proportionality ) , provides :", "“ Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic ORG for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . ”", "LAW guarantees freedom of expression . It states , in so far as relevant :", "“ The freedom to express opinions , to acquire and to disseminate information shall be ensured to everyone . ”", "Article CARDINAL lists the sources of law . That provision reads , in so far as relevant , as follows :", "“ CARDINAL . The sources of the universally binding law of GPE shall be : the LAW , statutes , ratified international agreements , and regulations . ... ”", "LAW , in its relevant part , states :", "“ CARDINAL . After promulgation thereof in LAW ( PERSON ) , a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly , unless its application depends on the enactment of a statute .", "An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement can not be reconciled with the provisions of such statutes . ”", "Article CARDINAL § CARDINAL of the LAW provides as follows :", "“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”", "Article CARDINAL of the LAW , insofar as relevant provides as follows :", "“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .", "Judgments of ORG , ... shall be published without delay .", "A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...", "A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given , shall be a basis for re - opening of the proceedings , or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . ”", "Article CARDINAL § § CARDINAL and CARDINAL of LAW provides as follows :", "“ § CARDINAL . Anyone who imputes to another person , a group of persons , an institution , a legal person or an organisation without legal personality , such behaviour or characteristics , as may lower this person , group or entity in the public opinion or undermine public confidence in their capacity necessary for a certain position , occupation or type of activity , shall be liable to a fine , a restriction of liberty or imprisonment not exceeding CARDINAL year .", "§ CARDINAL . NORP If the perpetrator commits the act described in paragraph CARDINAL through a means of mass communication , he shall be liable to a fine , restriction of liberty or imprisonment not exceeding DATE . ”", "In DATE a constitutional complaint was lodged with ORG against Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW . A claimant in that case , who had been convicted on the basis of these provisions , alleged that they were incompatible with LAW read in conjunction with LAW and LAW . The case was registered under no . ORG CARDINAL/CARDINAL and currently the proceedings on the merits of that complaint are pending .", "Article CARDINAL of the Code of Criminal Procedure provides as follows :", "“ The Prosecutor General or the Ombudsman may lodge a cassation appeal against any final and enforceable judicial decision . ”", "Article CARDINAL § CARDINAL of LAW stipulates that a defendant may not lodge a cassation appeal in cases where a suspended prison sentence has been imposed .", "LAW provides for reopening of the proceedings following a judgment of ORG . It provides as follows :", "“ The proceedings shall be reopened to the benefit of the accused when as a result of ORG judgment a provision of law which served as the basis for conviction or conditional discontinuation [ of the proceedings ] was abolished or amended . ”", "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 .", "A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under LAW read in conjunction with section CARDINAL ) of LAW .", "Section CARDINAL , in so far as relevant , reads as follows :", "Section CARDINAL provides , in so far as relevant :", "“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”", "Section CARDINAL refers to proceedings that have been terminated and that do not fall under the transitional provision of section CARDINAL ( see paragraph CARDINAL below ) in the following terms :", "“ A party who has not lodged a complaint about the unreasonable length of the proceedings under LAW ( CARDINAL ) may claim DATE under LAW ... DATE compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended .", "Article CARDINAL of the Civil Code sets out limitation periods in respect of various claims based on tort . That provision applies to situations covered by Article CARDINAL of LAW . Article CARDINAL , in so far as relevant , reads :", "“ CARDINAL . A claim for compensation for damage caused by a tort shall lapse DATE following the date on which the claimant learned of the damage and the persons liable for it . However , the claim shall in any case lapse DATE following the date on which the event causing the damage had occurred . ”", "Section CARDINAL of LAW lays down the following transitional rules in relation to the applications already pending before the Court :", "“ 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 .", "A complaint lodged under subsection CARDINAL shall indicate the date on which the application was lodged with the ORG .", "The relevant court shall immediately inform the Minister of ORG of any complaints lodged under subsection CARDINAL . ”", "On DATE ORG ( Sąd Najwyższy ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while the DATE Act 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 , GPE .", "The applicant and PERSON had a daughter PERSON , born on DATE . The couple married in DATE . The applicant and his wife separated on DATE .", "On DATE lodged a divorce petition with ORG ( Sąd Wojewódzki ) . On DATE the proceedings were discontinued as she had withdrawn her petition .", "NORP In DATE PERSON again lodged a petition for divorce , this time with ORG in GPE .", "DATE and DATE PERSON was detained on charges of child abduction and theft . On DATE she was acquitted by ORG .", "On DATE the GPE ORG awarded custody rights to PERSON The court considered that the mother took great care of the child and that the child had very good living conditions at her mother ’s place .", "On DATE the applicant lodged an application with FAC for sole custody of his daughter .", "On DATE ORG in GPE , GPE , gave a decision . The court awarded parental rights to GPE and limited the applicant ’s rights to visiting rights . The court did not specify the access arrangements . The court also restricted PERSON ’s parental rights by appointing a guardian to supervise her in the exercise of her rights .", "Meanwhile , on DATE the applicant asked the court to specify the access arrangements .", "On DATE the ORG gave a decision pursuant to the provisions of LAW . It allowed the applicant to visit the child on DATE between TIME and CARDINAL p.m. The meeting was to take place on the LOC of FAC ( ORG pomocy dziecku i rodzinie w ORG ) . In addition , ORG and a court guardian were to be present during the meeting .", "On DATE the Bedzin Family Centre confirmed that DATE and DATE the applicant failed to report for visits . On the other hand , the child and the mother were present at every meeting .", "On DATE the applicant applied to ORG to change the access arrangements . He wished to see his daughter during DATE of DATE and DATE in DATE . On DATE ORG dismissed his request .", "On DATE the applicant lodged an application with the GPE ORG challenging his paternity with respect to GPE However , a DNA test confirmed his paternity .", "On DATE ORG in GPE dissolved the applicant ’s marriage and awarded parental rights to PERSON", "On DATE PERSON instituted proceedings before FAC in which she requested that the applicant be divested of his parental rights on the ground that he had been aggressive towards her . She further requested that the court prohibit the applicant from having contact with his daughter .", "On DATE the applicant asked the court to dismiss PERSON ’s request . He also requested that it grant him parental authority and limit PERSON ’s parental authority to a right to have contact with the child . He submitted that PERSON was incapable of bringing up a child and had a history of criminal convictions for theft . In addition , criminal proceedings against her were pending ( for assault on the applicant ) .", "On DATE the ORG gave a decision and dismissed both the applicant ’s and his ex - wife ’s requests . It also varied the contact arrangement of DATE . The court allowed the applicant to visit his daughter CARDINAL times a year , on DATE QUANTITY The court held that the meeting was to take place on the LOC of FAC and PERSON and a court guardian were to be present during the meetings .", "The applicant appealed . On DATE ORG dismissed his appeal . The court repeated the reasons given by ORG .", "On DATE the GPE ORG convicted PERSON of assault on the applicant .", "A further cassation appeal by the applicant was dismissed by ORG ( Sąd Najwyższy ) on DATE . The court referred to the child ’s best interest .", "In DATE and DATE PERSON failed to report with the child to FAC for visits . In particular , on DATE , CARDINAL May , and DATE , and DATE and CARDINAL DATE the applicant was present at FAC . On all these occasions the mother did not bring the child .", "The applicant met his daughter on DATE , CARDINAL DATE , CARDINAL May and DATE .", "On DATE the applicant made a request for modification of his contact arrangements . He asked to see his daughter without the presence of the mother and the guardian . On DATE the ORG gave a decision . On the basis of an expert ’s report the court considered that contact with the applicant had been very stressful for the child . For these reasons and in view of the well - being of the child the court dismissed the applicant ’s request .", "On DATE the applicant made a request to ORG under LAW , asking the court to fine PERSON for failure to comply with the order of DATE . On DATE the court dismissed his request .", "On DATE the applicant met his daughter in FAC .", "In DATE the applicant ’s daughter ( then DATE ) sent a letter to her father stating that she did not wish to see him .", "On DATE the mother again failed to bring PERSON for a visit .", "On DATE the applicant made a request to ORG under LAW , asking the court to fine PERSON for failure to comply with the order of DATE . He also asked the court to vary the contact arrangements and to allow him to visit his daughter CARDINAL times a year , on DATE TIME", "On an unknown date the request to impose a fine on PERSON was transferred to ORG of ORG . On DATE she was fined ( MONEY ( ORG ) ) for failing to appear at meetings . Her appeal against his decision was dismissed on DATE .", "On DATE FAC gave a decision and dismissed the applicant ’s request for modification of the contact arrangements . The court heard the CARDINAL -year - old PERSON , who stated that she did not wish to have any contact with the applicant . The court held that it was not in the child ’s best interest to vary the visiting arrangements .", "The relevant domestic law concerning the enforcement of a parent ’s visiting rights is set out in the ORG ’s judgment in the case P.P. v. GPE no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , DATE ." ]

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[ "8" ]

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[ "The applicant was born in DATE and lives in GPE .", "In DATE the applicant , an NORP and NORP national , and ORG established a joint - venture company for DATE . It was called “ LOC ” and specialised in the production of plastic materials . The company ’s memorandum , dated CARDINAL DATE , was validated by a decision of ORG on DATE . The new company was duly registered in ORG .", "NORP The assets of the company consisted of a factory with its equipment , of a total value of CARDINAL NORP leks ( ALL –approximately CARDINAL ( ORG ) ) , which had previously belonged to a ORG - owned company named PERSON . The applicant ’s investment in the company consisted of capital amounting to MONEY ( DATE approximately ORG CARDINAL,CARDINAL ) , to be used for the renovation of the factory and the future purchase of new technology . The parties would each hold PERCENT of the shares .", "On DATE , in order to comply with the obligations entered into in the memorandum , the applicant , on behalf of ORG , signed a contract for the purchase of new technology for the production of plastic materials with ORG , an NORP company . A lump sum of USD CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) was paid by the applicant . A second amount of money was to be invested subsequent to the first stage of the factory ’s renovation .", "When PERCENT of the renovation of the factory had been carried out , the ORG terminated the company ’s activities and requested the applicant to propose new terms of cooperation . The applicant objected . Subsequently , in a decision of DATE ORG annulled its decision of CARDINAL DATE and unilaterally rescinded the agreement establishing the ORG company .", "On an unspecified date , in order to obtain redress , the applicant applied to ORG ( Arbitrazhi i Shtetit ) , which was the competent body at the material time to deal with disputes involving ORG joint - ventures .", "On DATE ORG upheld the validity of the ORG company ’s memorandum . Moreover , it ordered the ORG to pay the applicant ALL CARDINAL ( approximately FAC ) for the loss of profit incurred as a result of the cessation of the company ’s activities during DATE and ALL CARDINAL ( approximately ORG CARDINAL ) to cover bank interest on the ORG CARDINAL investment . Furthermore , it ordered the ORG - owned company to finish the reconstruction work at the factory by DATE . Lastly , ORG dismissed the applicant ’s request to have his share of the investment refunded , on the ground that it was part of the assets of the company .", "The ORG appealed against the above - mentioned decision to ORG ( ORG PERSON ) . On DATE the latter upheld the part of the decision of ORG ordering the ORG to comply with its obligation to pursue the activities of the joint venture , but quashed the part of the decision awarding the applicant compensation for bank interest and loss of profit and remitted the case to ORG for a fresh calculation of the loss of profit . The first part of the decision of CARDINAL DATE became final on DATE .", "On DATE ORG , following the guidelines given by ORG in its decision of DATE , ordered the ORG to pay the applicant a lump sum of MONEY ( approximately ORG CARDINAL,CARDINAL ) for loss of profit in DATE . The decision became final on DATE .", "On an unspecified date in DATE the bailiffs , in compliance with the above - mentioned final decision , froze the assets of the ORG - owned company and paid the applicant the sum of ALL CARDINAL due to him .", "Following the refusal of ORG to serve ORG decision of DATE on him , the applicant lodged a complaint with ORG in order to obtain redress . On DATE ORG found a violation of the applicant ’s constitutional rights and ordered that he be served with the decision issued by ORG .", "DATE after the decision of ORG , ORG served the decision on the applicant .", "On an unspecified date the ORG - owned company that was the applicant ’s partner in the joint - venture applied to ORG to have the arbitration decision of CARDINAL DATE declared null and void on the ground that it had been issued after ORG had ceased to exist as a decision - making body on DATE . Moreover , it requested the court to annul the bailiffs’ order concerning the freezing of its assets with a view to enforcing the arbitration decision .", "On DATE and DATE respectively , ORG and ORG dismissed the company ’s application and upheld the validity of ORG decision in the applicant ’s favour . The judgment became final at the latest on DATE .", "On DATE and DATE respectively , ORG ( ORG ) sold to F. the premises of the factory and the plot of land adjacent to it , despite their being the assets of the ORG company .", "The applicant initiated proceedings contesting the privatisation decisions .", "On DATE , DATE , DATE , DATE and DATE respectively , ORG , ORG , ORG , ORG , and ORG found the privatisation acts to be null and void and , inter alia , ordered that the factory be treated as part of the assets of the ORG company . Lastly , the domestic courts ordered F. to return possession of the factory and its adjacent plot of land to the partners of the ORG company .", "Following a request by the applicant , on DATE ORG issued a writ for the execution of the judgment of DATE .", "Notwithstanding the above - mentioned order , on DATE ORG and Finance , without the applicant ’s consent , concluded a DATE lease agreement with another company , NORP , which was to operate the factory at issue for the purpose of producing shoes ( see the proceedings outlined in section F below ) . The NORP company already occupied and operated the factory under a DATE lease agreement concluded with F. in DATE ( see the proceedings outlined in section D below ) .", "In DATE , while the proceedings on the legality of the decisions to privatise the factory were pending , PERSON concluded a DATE lease agreement with the NORP company , on the basis of which the latter would operate the factory for the purpose of producing shoes .", "With a view to suspending the execution of the writ of CARDINAL January CARDINAL , the NORP company lodged an application with ORG for a stay of the enforcement proceedings . On DATE the court upheld the application .", "In a decision of CARDINAL DATE ORG held that the applicant should comply with the terms of the lease agreement entered into by PERSON and the NORP company . On DATE ORG upheld the above - mentioned decision .", "The applicant appealed against the decision to ORG .", "On DATE ORG found that , since the privatisation decisions had been held to be null and void , PERSON had been in no position to conclude such an agreement : therefore the lease was null and void . The court quashed the decisions of ORG and discontinued the proceedings .", "NORP However , by that time the DATE lease agreement had terminated ( on DATE ) and the NORP company now operated the factory under a new lease agreement , this time concluded with the Government ( see the proceedings outlined in section F below ) .", "On DATE , while the proceedings against the NORP company concerning the validity of the first lease agreement were pending , ORG and the applicant agreed to establish a new ORG company . The new company was founded on the basis of the memorandum of the first ORG company , dated DATE , ORG decision of DATE and ORG final judgment of DATE in the applicant ’s favour .", "By CARDINAL of the memorandum establishing the new company , “ the parties recognised their responsibilities for the failure to comply with the obligations entered into in the first memorandum and agreed to pay the damages due ( ORG decision of DATE and ORG judgment of DATE ) ” .", "The parties agreed to joint ownership of the company on a CARDINAL basis for a period of DATE and the applicant was to act as the administrator of the company .", "In a decision of CARDINAL DATE the ORG registered the new company as ORG , a plastic - manufacturing company jointly owned by the applicant and a ORG - owned enterprise that at the material time was under the responsibility of ORG .", "On DATE the partners held the first general meeting of the company in order to quantify their shares in the capital . The representative of the ORG - owned company submitted that the ORG would register its share of the capital in the name of the ORG company once the applicant had invested his share . The applicant disagreed on the ground that the law provided that the partners should invest their shares of the capital at the same time .", "On DATE , despite the registration of the new company on DATE and in breach of the obligations assumed by ORG on DATE , ORG and Finance , without the applicant ’s consent , concluded a DATE lease agreement with the NORP company . Under the new agreement , the NORP company was to use the factory belonging to the ORG company for the purpose of producing shoes .", "In the light of the above , on DATE ORG and ORG ordered the removal of ORG assets from ORG ( PERSON ) . As a result , the factory and the adjacent plot of land were registered as ORG properties .", "The applicant lodged appeals against the order with ORG , ORG and other ORG bodies . On DATE ORG ordered a stay of execution of the order .", "In a letter of DATE the Deputy Prime Minister advised the Minister for Labour , the Minister for ORG and ORG to comply with the courts’ final decisions in the applicant ’s favour .", "Notwithstanding the above , the assets of the applicant ’s company were removed from ORG .", "On an unspecified date the applicant lodged an application with ORG contesting the lawfulness of such a measure .", "On DATE ORG ordered the re - entry of the company ’s assets in the register .", "On DATE ORG quashed ORG decision on procedural points and remitted the case to ORG for fresh consideration .", "On DATE ORG dismissed an appeal by the applicant , holding that his grounds of appeal fell outside the scope of Article CARDINAL of the Code of Civil Procedure ( ORG ) .", "On an unspecified date ORG , in the rehearing of the case , called the liquidator of the applicant ’s company to intervene in the proceedings as a third party ( see the proceedings outlined in section H below ) .", "On DATE ORG , in a fresh set of proceedings , dismissed the applicant ’s application on the ground that he represented a company in liquidation and thus had no standing before the court . That decision was upheld by ORG on DATE .", "On DATE ORG dismissed an appeal by the applicant , holding that his grounds of appeal fell outside the scope of Article CARDINAL of the ORG .", "In the light of the above , the NORP company applied to ORG for a stay of execution of the writ issued by the same court on DATE ( see paragraph CARDINAL above ) . On DATE the court allowed that request .", "The applicant appealed to ORG .", "DATE . On DATE ORG found that the NORP company was not a party to the proceedings that had led to the writ of CARDINAL DATE and was therefore not eligible to make such a request .", "On DATE and DATE , and on DATE respectively , the ORG ) and the Ambassador of GPE in GPE called on the authorities to honour the final judgments given in the applicant ’s case .", "In a letter of CARDINAL DATE the Minister for ORG requested ORG not to enforce the writ of DATE since the factory had been entered in ORG as ORG - owned property and was therefore no longer an asset belonging to ORG but was subject to a lease agreement concluded with another company .", "On DATE ORG decided not to proceed with the enforcement of the writ .", "Following an appeal by the applicant on behalf of the company , ORG on DATE and ORG on DATE upheld the applicant ’s grounds of appeal and ordered ORG to proceed with the enforcement .", "ORG appealed against those decisions before ORG .", "On DATE ORG , quashed the decisions of ORG and ORG and remitted the case to ORG for a fresh examination , on the ground that the courts had failed to give notice of the proceedings to ORG .", "On an unspecified date , in the new set of proceedings ORG , having regard to its own decision to liquidate the company , called the liquidator of the ORG company to join the proceedings ( see the proceedings summarised in section H below ) . The applicant contested this on the ground that the dispute concerned his interests and not those of the company in liquidation .", "On DATE , at the liquidator ’s request , ORG discontinued the proceedings . The decision was upheld by ORG and ORG on DATE and DATE , respectively .", "In DATE the ORG - owned company on various occasions unsuccessfully requested the applicant , in his capacity as administrator of the ORG company , to organise a general meeting of the company .", "On DATE , during a general meeting of the company , the representative of the ORG - owned company informed the applicant of its decision to rescind the agreement with the ORG company . The applicant contested this . Accordingly , ORG requested the court to order the winding - up of the ORG company and the liquidation of its assets , on account of the applicant ’s lack of interest in the company ’s activities .", "On DATE the court appointed a liquidator and confirmed the liquidation of ORG . ORG decision was upheld by ORG in a decision of DATE . ORG , on DATE , dismissed a subsequent appeal , holding that the grounds of appeal fell outside the scope of LAW of the ORG .", "On an unspecified date the applicant lodged an appeal with ORG , claiming , inter alia , that the proceedings were unfair on the grounds that ORG , not being a shareholder of the ORG company , had no right to request the winding - up of the company and that the proceedings had been initiated against the applicant and not against the company , since ORG , the other shareholder , had not been given notice of the proceedings .", "On DATE the liquidator of the ORG company requested the applicant , in his capacity as the company ’s administrator , to submit the company ’s accounts and its stamp . In view of the applicant ’s reluctance to participate in the general meetings organised by the liquidator , the latter requested ORG to validate the final accounts of the company and to order its removal from ORG . The applicant requested a stay of the proceedings until ORG had determined the case .", "On DATE ORG dismissed the applicant ’s request , validated the final accounts of the company and ordered the termination of the winding - up proceedings . Moreover , it ordered that the termination of the winding - up proceedings be entered in ORG . That decision was upheld by ORG on DATE .", "On DATE ORG , in a formation of CARDINAL out of the CARDINAL judges provided for by the relevant law on its functioning and organisation , dismissed the applicant ’s appeal since its vote was tied . The court ’s reasoning was limited to the fact that the court could not reach a majority on any of the issues raised in the present case . The applicant was invited by virtue of section CARDINAL of LAW to lodge a fresh appeal ( see paragraph DATE below ) .", "The applicant did not lodge a fresh constitutional appeal under LAW of LAW .", "The relevant parts of LAW read as follows :", "“ In the protection of his constitutional and legal rights , freedoms and interests , or in defending a criminal charge , everyone has the right to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . ”", "“ The Constitutional Court shall decide : ...", "( f ) in a ruling that shall be final , complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”", "“ ( ... )", "ORG decides with the majority of all its members . ”", "“ State bodies shall comply with judicial decisions . ”", "The LAW provides that ORG is the highest authority which guarantees compliance with the LAW and rules on its final interpretation .", "DATE . The ORG is composed of CARDINAL members , who are appointed by the President of the Republic with the consent of ORG ( section CARDINAL ) .", "A preliminary review of complaints lodged by individuals is conducted by a panel of CARDINAL ORG judges , including the reporting judge ( section CARDINAL ) .", "The ORG decides on individual applications at a plenary session attended by all the judges . The quorum of the plenary session is CARDINAL of the elected judges in office ( section CARDINAL ) . The ORG takes its decisions by a majority of all its members ( LAW ) .", "The decisions of ORG are taken by a majority of the judges present and abstentions are not allowed ( section DATE ) .", "Pursuant to section CARDINAL of the Act , in the event of a tied vote ORG must dismiss the appeal . The dismissal of an appeal for this reason does not prevent the appellant from resubmitting the complaints to ORG , which subsequently adopts a decision provided that a majority of the sitting judges is attained .", "LAW provided for the organisation and functions of ORG ( Arbitrazhi i Shtetit ) , which was the body with jurisdiction to determine disputes where the economic interests of the ORG were at issue . Under LAW of the LAW , its decisions , once final , were binding on ORG or other ORG financial bodies and ORG .", "Proceedings for the enforcement of final adjudications were initiated by filing a decision with ORG . Under LAW of the LAW , the decisions of ORG were subject to appeal before ORG ( ORG PERSON ) .", "Law no . DATE dated DATE repealed the LAW and dissolved ORG .", "DATE . Materials available to the ORG describe relevant aspects of the occurrence of tied votes in the upper ORG decision - making in several ORG representing different legal traditions . There is no uniform practice in the contracting GPE with regard to the occurrence of a tied vote in decision - making before ORG . Many GPE provide for measures to avoid tied votes and to ensure that a majority is obtained , such as establishing formations made up of an uneven number of judges ( for example , in GPE , GPE , GPE , GPE and GPE ) and/or prohibiting judges from abstaining ( for example , in GPE , GPE and GPE and GPE ) and/or providing for an uneven number of judges to make a decision - making quorum ( for example , in GPE , GPE and GPE ) . Even in these circumstances , however , a tied vote could still occur . With a view to ensuring that a final decision can be reached , even in the event of a tied vote , different legal systems provide for different solutions , such as a casting vote for the president of the court / formation ( for example , in GPE , GPE and GPE ) or for the judge rapporteur ( for example , in GPE ) , or giving an interpretation to the tied vote ( for example , in GPE , GPE , GPE and GPE ) . In the event of a tied vote , the NORP legal system provides for the adjournment of the case for an unspecified period of time until the circumstances that created the tied vote have ceased to exist ( see paragraph CARDINAL above ) ." ]

[ "13", "6" ]

[ "6-1" ]

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[ "6-1" ]

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[ "The applicants are NORP nationals and live in GPE . At the material time , they worked as journalists on PERSON , a LANGUAGE - language DATE newspaper based in GPE . Publication of the newspaper ceased on DATE and it was replaced initially by PERSON and subsequently , on DATE , by another DATE newspaper , CARDINAL ORG PERSON . That newspaper was replaced on DATE by a DATE periodical called PERSON .", "At the material time one of the applicants , PERSON , an independent journalist , wrote a column entitled “ Notes from GPE ” ( PERSON ) , which was published on DATE in PERSON . PERSON was PERSON representative in GPE . He currently works as a press officer for ORG .", "As for the other applicants , PERSON is now the mayor of ORG , Mr Kaya is a lawyer and Mr PERSON and PERSON both teach in schools in eastern GPE . Mr GPE continues to work as a journalist with the DATE publication CARDINAL . PERSON , while Mr PERSON currently works as a press officer for ORG .", "NORP The main point at issue in the present case is a ban that was imposed on DATE by the governor of the state of emergency region on the distribution of PERSON in that region .", "According to the applicants , the distribution of PERSON was impeded by the security forces in the period from DATE , and the governor of the state of emergency region subsequently imposed a ban on its publication and distribution in the region where the state of emergency had been declared ( see paragraph CARDINAL below ) . On DATE the proprietor of ORG sent a letter to ORG informing it of the disruption caused to the distribution of the newspaper and demanding an end to these unlawful acts . He also sought compensation for the loss sustained .", "On DATE the governor of the state of emergency region wrote to the proprietor of PERSON to say that his office was not responsible for the acts mentioned in the letter . He enclosed the seizure orders that had been made by the relevant authorities .", "The Government have produced to ORG DATE warrants issued by judges of ORG for the seizure of various issues of the newspaper in DATE , DATE .", "On DATE Mr Bakaç and PERSON lodged a criminal complaint with the ORG public prosecutor 's office because of the alleged disruption to the distribution of the newspaper .", "On DATE the public prosecutor 's office ruled that it had no power to deal with the complaint and referred it to ORG under the Prosecution of Civil Servants Act .", "On DATE ORG held that there was no case to answer in view of the seizure warrants that had been issued by ORG . Its decision was upheld by ORG on DATE .", "On DATE the governor of the state of emergency region imposed a ban on the publication and distribution of PERSON in that region .", "On DATE ORG wrote to PERSON , in his capacity as PERSON representative in GPE , informing him of the ban . Its letter read as follows :", "“ Regard being had to Directive no . CARDINAL issued by the governor 's office of the state of emergency region on DATE ,", "With effect from DATE the publication and distribution of the DATE newspaper ORG in the provinces in which a state of emergency has been declared under the aforementioned directive ( ORG , PERSON , PERSON , GPE , GPE and PERSON ) shall be prohibited . ”", "Likewise , on DATE ORG wrote a letter to the company responsible for distributing the newspaper , PERSON , based in GPE , in the following terms :", "“ Regard being had to Directive no . CARDINAL issued by the governor 's office of the state of emergency region on DATE ,", "With effect from DATE the publication and distribution of the GPE DATE newspaper ORG in the provinces in which a state of emergency has been declared under the aforementioned directive ( ORG , PERSON , PERSON , GPE , GPE and PERSON ) shall be prohibited , pursuant to LAW no . CARDINAL and section CARDINAL(e ) of ORG . ”", "On DATE the governor of the state of emergency region imposed a ban pursuant to LAW no . CARDINAL on the publication and distribution of PERSON , the DATE newspaper that had replaced PERSON .", "Similarly , on DATE he issued an order prohibiting the publication and distribution of the DATE newspaper CARDINAL ORG PERSON in the state of emergency region .", "Lastly , on DATE the DATE publication PERSON , which had replaced CARDINAL ORG PERSON , met the same fate , with a ban being imposed on its publication and distribution in the region .", "The applicants have produced a notice dated DATE which shows that at different times the governor of the state of emergency region imposed bans on the publication and distribution of CARDINAL periodicals , including PERSON , PERSON and QUANTITY ORG PERSON .", "NORP The governor 's office of the state of emergency region was set up with special powers after the state of siege was officially declared to be over on DATE by LAW no . CARDINAL of DATE . A state of emergency was thus decreed in the provinces of ORG , GPE , ORG , PERSON , PERSON , PERSON , GPE and PERSON . On DATE the state of emergency was extended to the province of ORG , but lifted in the province of ORG . It was declared to be over in the provinces of Batman , ORG and ORG on DATE , in the province of GPE on DATE and in the provinces of GPE and PERSON on DATE . In DATE it was extended by DATE in the provinces of GPE and GPE .", "The powers of the governor of the state of emergency region ( Olaganüstü PERSON GPE ) are set out in GPE ( Law no . CARDINAL of DATE ) and various legislative decrees that were issued after the state of emergency was declared ( Legislative Decrees nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL ) .", "Section CARDINAL(e ) of LAW reads as follows :", "“ ... If a state of emergency is decreed , the following measures may be imposed with a view to maintaining general security , safety and public order and to preventing any escalation in the violence ... :", "...", "( e ) An order prohibiting , either absolutely or without prior permission , the editing , dissemination , publication or distribution of newspapers , reviews , brochures , pamphlets , posters or any similar publications , or the publication or distribution of any such [ publications ] which have been printed or disseminated outside the state of emergency region ... ”", "DATE ( a ) of Legislative Decree no . CARDINAL provides :", "“ The printing , dissemination , publication or distribution of books , reviews , newspapers , brochures , posters or other similar publications liable seriously to undermine public order in the region , to cause agitation among the local population or to obstruct the security forces in the course of their duties by giving a false account of operations being conducted in the region shall be prohibited , either absolutely or without the prior permission of the governor of the region to which the state of emergency applies or the governors of the provinces concerned . [ Likewise , ] the publication or distribution of [ any publication of the same type ] that has been printed and published outside the state of emergency region shall be prohibited , either absolutely or without the prior permission of the governor of the region to which the state of emergency applies or the governors of the provinces concerned ... ”", "The relevant part of Article CARDINAL § CARDINAL of the LAW provides :", "“ ... There shall be no right of appeal to ORG to contest the form or substance of legislative decrees issued during a state of emergency , a state of siege or in wartime . ”", "DATE Decree no . CARDINAL , as amended by LAW no . CARDINAL of CARDINAL DATE , precludes any application in the administrative courts to have an administrative act performed pursuant to Legislative Decree no . CARDINAL set aside .", "DATE of Legislative Decree no . CARDINAL reads as follows :", "“ No criminal , financial or civil liability may be asserted against ... the governor of the state of emergency region or 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 legislative decree , and no application shall be made to any judicial authority to that end . This shall be without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification [ sebepsiz ] . ”", "ORG has reviewed the constitutionality of LAW no . CARDINAL , as amended by LAW no . CARDINAL of CARDINAL DATE , in a judgment of DATE , which was published in ORG on DATE . It stated :", "“ It is not possible to reconcile that provision [ which precludes any judicial scrutiny of acts performed by the governor of the state of emergency region ] with the concept of the rule of law ... The system of government when a state of emergency has been declared is not an arbitrary one that escapes all judicial scrutiny . There can be no doubt that individual and regulatory acts performed by the competent authorities while the state of emergency continues must be subject to judicial review . Contravention of this principle is inconceivable in countries run by democratic regimes and founded on freedom . However , the impugned provision is contained in a legislative decree that can not be the subject of constitutional review ... Consequently , the application for an order quashing that provision must be dismissed as being incompatible ratione materiae [ yetkisizlik ] ... ”", "As regards LAW no . CARDINAL , in CARDINAL judgments delivered on DATE and CARDINAL DATE ( published in ORG on DATE and DATE respectively ) , ORG followed that decision in dismissing as incompatible ratione materiae applications for orders quashing the relevant provisions ." ]

[ "10" ]

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[ "The applicant , born in DATE , is a NORP national . He is a businessman by profession . When lodging his application , he was detained in a prison at PERSON / PERSON .", "In DATE criminal proceedings were commenced against , inter alia , the applicant on charges of drug trafficking . In these proceedings , he was assisted by defence counsel .", "The applicant was arrested on DATE on the basis of an arrest warrant issued by ORG ( ORG ) on DATE and taken into detention on remand . His detention was suspended on DATE . On DATE he was again arrested and detained on remand until DATE .", "On DATE ORG ) preferred the indictment ( PERSON ) against the applicant . He was charged with CARDINAL counts of drug trafficking .", "On DATE the GPE ORG ( Landgericht ) partly rejected the indictment . It refused in particular to open the trial proceedings as to CARDINAL count of drug trafficking . The court considered that , having regard to the evidence presented by ORG , there was not sufficient suspicion to justify committing the applicant for trial . On DATE ORG ( Oberlandesgericht ) , on ORG appeal , committed the accused for trial on all counts . It further directed that the trial was to open before ORG .", "On DATE the GPE ORG , following trial hearings DATE , convicted the applicant of CARDINAL count of drug trafficking . Having regard to CARDINAL previous convictions , it fixed a cumulative sentence of DATE and DATE imprisonment . The court found in particular that the applicant and his co - accused had sold cocaine to an undercover agent of the NORP police . The ORG considered that their defence , namely that they had themselves intended to arrange for a fictitious deal and the subsequent prosecution of the purchaser , was in itself inconclusive and refuted by the evidence . The applicant 's contacts with the police authorities had only served the purpose of finding out whether the purchaser was an undercover agent . Medical expert evidence had confirmed the applicant 's full criminal responsibility .", "On DATE ORG ( ORG ) dismissed the applicant 's appeal on points of law . In his statement of appeal , the applicant ’s counsel had complained about the violation of substantive law in general and also about a point of procedural law , namely the alleged taking into account of evidence not produced at the trial . The applicant ’s request for leave to file supplementary reasons out of time was rejected on the ground that he had failed to submit these reasons together with his request . The applicant received the decision on DATE .", "Sitting as a panel of CARDINAL members , on DATE ORG ( zweite ORG ) of ORG ( Bundesverfassungsgericht ) declined to entertain the applicant 's constitutional appeal of CARDINAL DATE ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the town of PERSON of GPE . ORG were represented by PERSON , Representative of GPE before ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant is a former employee of various coal mines of ORG , a joint - stock limited liability company .", "It was established as a result of restructuring of CARDINAL of the major NORP coal producers in DATE .", "In DATE a number of production units were incorporated under the private law rules as a joint - stock company with limited liability . According to the ORG , the federal and regional authorities owned stakes in the company of CARDINAL and MONEY respectively . It appears that the remaining stock was held by private shareholders , including the company ’s employees .", "It appears that in DATE the company ran into trouble and subsequently experienced difficulties in managing its debt , the greater part of which represented salary arrears owed to the company ’s numerous employees .", "In DATE , having faced social tensions in the respective region , the federal authority intervened by adopting a special programme according to which OAO was to be liquidated , its assets auctioned and the company ’s debt financed , in part , by the authorities .", "In DATE , shortly after his dismissal , the applicant brought CARDINAL court actions against his former employer claiming salary arrears and unpaid social benefits .", "By a judgment of DATE the Justice of the Peace of the CARDINALth circuit of the town of GPE of GPE recovered the applicant ’s unpaid salary totalling MONEY ( RUR ) from the defendant company for the period DATE . The judgment came into force on DATE .", "According to the Government , the money owed to the applicant was transferred to his bank account in full on DATE , which is slightly over DATE after the judgment of CARDINAL DATE had been given .", "On DATE the NORP ORG of the Rostov Region ordered the defendant company to pay the applicant work - related sickness benefits of ORG . This judgment came into force on DATE .", "The Government submitted that the judgment at issue had been executed in full by bank transfer dated DATE , which is DATE , DATE and DATE after the judgment of DATE became enforceable .", "By a judgment of CARDINAL DATE the NORP ORG of GPE ordered the defendant company to pay the applicant non - pecuniary damages of RUR CARDINAL,CARDINAL for the delays in payment of the salary . This judgment became enforceable on DATE .", "According to the Government , this judgment was enforced in full by bank transfer to the applicant ’s account on DATE . The transfer was made DATE and DATE after the judgment in question became enforceable .", "By a judgment of DATE the Justice of ORG the town of GPE of GPE ordered the defendant to pay the applicant a compensation of RUR CARDINAL,CARDINAL.CARDINAL for delays in payment of his salary DATE . The judgment became enforceable on DATE .", "The Government submitted that the execution writ in respect of the judgment of DATE had been accepted by the winding - up committee of the company and joined to the list of the company ’s priority CARDINAL creditors . It would be complied with after the additional sale of the company ’s assets and after the debts towards the priority CARDINAL creditors had been honoured .", "On DATE the Justice of the Peace of the CARDINALst circuit of the town of GPE of GPE awarded the applicant damages for being kept out of his money through the delays in payment of his salary for DATE , ordering the defendant company to pay ORG . The judgment came into force on DATE .", "The Government submitted that the applicant had received a copy of the writ in respect of this judgment from the registry of the first - instance court on DATE , but had not sent it to the company until DATE . As a result , the writ was received on DATE . The winding - up committee was still waiting for the applicant to submit a second copy of the writ and a copy of the judgment of CARDINAL DATE . Upon receipt of the said documents , the applicant ’s claim would be recorded in the list of the company ’s priority CARDINAL creditors .", "On DATE the bailiffs of the town of ORG seized the assets of ORG ; of which the estimated value was ORG CARDINAL,CARDINAL,CARDINAL .", "By letters of DATE and DATE the Deputy Governor of GPE in charge of fuel , energy and natural resources informed the applicant that PERSON was an unprofitable company , that the question of its restructuring had been long debated by the authorities at various levels , that on DATE ORG on ORG adopted a plan under which the company was to be wound - up , that on DATE the meeting of ORG shareholders had adopted that decision , that the debts of ORG would be honoured through the sale of its assets and also with the financial assistance of the authorities and that the existing salary debts would be honoured during DATE .", "By letter of CARDINAL DATE ORG , a ORG agency set up to solve problems arising out of restructuring of the coal - mining industry , informed the applicant that his previous complaints about the prolonged failure to execute the judgments had been forwarded to ORG and that the president of its winding - up committee had been asked to repay the debts as soon as possible .", "Section CARDINAL of the Joint - Stock Companies Act ( Law no . CARDINAL of DATE ) provides , among other things , that a joint - stock company is a commercial organisation whose capital is divided into a definite number of shares of stock certifying the rights and obligations of the members ( shareholders ) vis - à - vis the company . Shareholders are not liable for obligations of the company and bear the risk of losses associated with its activity only to the extent of the value of the shares owned by them .", "Under LAW ( Law no . CARDINAL-FZ of DATE ) bankruptcy creditors are creditors of monetary obligations , except for authorised bodies , citizens to whom a debtor is liable for harm to life or health or for moral harm or to whom royalties are owed under copyright contracts , and stakeholders of the debtor in so far as the liabilities in respect of such participation are concerned . They are among the parties to a bankruptcy case and may complain to the court about action or failure to act breaching their rights .", "By virtue of the above decree , ORG was to finance the debt of ORG in so far as the salary debts and related social payments prior to the decision to wind up the company were concerned .", "The ORG institution PERSON was established by ORG of DATE as a principal coordinator of the programmes of local development introduced to solve social problems arising out of restructuring of the coal - mining industry ." ]

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[ "ORG Mr. PERSON was born in DATE and is resident in GPE , GPE . In DATE , he was an antique dealer . It appears that he has since ceased business as such .", "ORG On DATE , Mr. PERSON was charged with a number of offences relating to dishonest handling of stolen goods . His trial , which took place in DATE and DATE , resulted in his being acquitted on certain counts and the jury disagreeing on the rest . He was retried on the remaining charges DATE . Following a further failure by the jury to agree , he was once more formally arraigned ; the prosecution offered no evidence and he was acquitted .", "ORG During the first trial , it emerged that details of a telephone conversation to which Mr. PERSON had been a party prior to CARDINAL DATE were contained in the note - book of the police officer in charge of the investigations . Counsel for the prosecution then accepted that this conversation had been intercepted on the authority of a warrant issued by the Secretary of ORG for ORG .", "ORG In DATE , the applicant instituted civil proceedings in ORG of ORG against ORG Commissioner , seeking , inter alia , declarations to the effect that interception , monitoring and recording of conversations on his telephone lines without his consent was unlawful , even if done pursuant to a warrant of the Secretary of ORG . ORG intervened in the proceedings on behalf of the Secretary of ORG but without being made a party . On DATE , the Vice - Chancellor , Sir PERSON , dismissed the applicant ’s claim ( ORG v. Commissioner of Police of the LOC ( No . CARDINAL ) , [ DATE ] CARDINAL All England Law Reports CARDINAL ; also reported at [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) . An account of this judgment is set out below ( at paragraphs CARDINAL - CARDINAL ) .", "ORG The applicant further believed that both his correspondence and his telephone calls had been intercepted for DATE . He based his belief on delay to and signs of interference with his correspondence . In particular , he produced to the Commission bundles of envelopes which had been delivered to him either sealed with an adhesive tape of an identical kind or in an unsealed state . As to his telephone communications , he stated that he had heard unusual noises on his telephone and alleged that the police had at times been in possession of information which they could only have obtained by telephone tapping . He thought that such measures had continued since his acquittal on the charges against him .", "It was admitted by the Government that the single conversation about which evidence emerged at the applicant ’s trial had been intercepted on behalf of the police pursuant to a warrant issued under the hand of the Secretary of ORG for the prevention and detection of crime . According to the ORG , this interception was carried out in full conformity with the law and the relevant procedures . No disclosure was made either at the trial of the applicant or during the course of the applicant ’s proceedings against the Commissioner of Police as to whether the applicant ’s own telephone number had been tapped or as to whether other and , if so , what other , telephone conversations to which the applicant was a party had been intercepted . The primary reasons given for withholding this information were that disclosure would or might frustrate the purpose of telephone interceptions and might also serve to identify other sources of police information , particularly police informants , and thereby place in jeopardy the source in question . For similar reasons , the ORG declined to disclose before the ORG or the ORG to what extent , if at all , the applicant ’s telephone calls and correspondence had been intercepted on behalf of the police authorities . It was however denied that the resealing with adhesive tape or the delivery unsealed of the envelopes produced to the ORG was attributable directly or indirectly to any interception . The Government conceded that , as the applicant was at the material time suspected by the police of being concerned in the receiving of stolen property and in particular of stolen antiques , he was one of a class of persons against whom measures of interception were liable to be employed .", "ORG In addition , Mr. PERSON believed that his telephone had been \" metered \" on behalf of the police by a device which automatically records all numbers dialled . As evidence for this belief , he asserted that when he was charged in DATE the premises of CARDINAL people whom he had recently telephoned were searched by the police . The Government affirmed that the police had neither caused the applicant ’s telephone calls to be metered nor undertaken the alleged or any search operations on the basis of any list of numbers obtained from metering .", "ORG In DATE , the applicant requested ORG and the complaints department of the police to remove suspected listening devices from his telephone . ORG and the police both replied that they had no authority in the matter .", "ORG The following account is confined to the law and practice in GPE and GPE relating to the interception of communications on behalf of the police for the purposes of the prevention and detection of crime . The expression \" interception \" is used to mean the obtaining of information about the contents of a communication by post or telephone without the consent of the parties involved .", "ORG It has for long been the practice for the interception of postal and telephone communications in GPE and GPE to be carried out on the authority of a warrant issued by a Secretary of ORG , nowadays normally the Secretary of ORG for ORG ( the Home Secretary ) . There is no overall statutory code governing the matter , although various statutory provisions are applicable thereto . The effect in domestic law of these provisions is the subject of some dispute in the current proceedings . Accordingly , the present summary of the facts is limited to what is undisputed , the submissions in relation to the contested aspects of these provisions being dealt with in the part of the judgment \" as to the law \" .", "ORG Three official reports available to the public have described and examined the working of the system for the interception of communications .", "Firstly , a ORG under the chairmanship of Lord PERSON was appointed in DATE \" to consider and report upon the exercise by the Secretary of ORG of the executive power to intercept communications and , in particular , under what authority , to what extent and for what purposes this power has been exercised and to what use information so obtained has been put ; and to recommend whether , how and subject to what safeguards , this power should be exercised ... \" . The ORG ’s report ( hereinafter referred to as \" the PERSON report \" ) was published in DATE ( as ORG ) . ORG announced that they accepted the report and its recommendations , and were taking immediate steps to implement those recommendations calling for a change in procedure . Subsequent Governments , in the person of the Prime Minister or ORG Secretary , publicly reaffirmed before ORG that the arrangements relating to the interception of communications were strictly in accordance with the procedures described and recommended in the PERSON report .", "Secondly , a ORG entitled \" The Interception of Communications in Great Britain \" was presented to ORG by the then Home Secretary in DATE ( Command Paper CARDINAL - hereinafter referred to as \" the White Paper \" ) . The purpose of the White Paper was to bring up to date the account given in the PERSON report .", "Finally , in DATE a report by Lord PERSON , a Lord of Appeal in Ordinary who had been appointed to monitor the relevant procedures on a continuing basis ( see paragraphs DATE and DATE below ) , was published outlining the results of the monitoring he had carried out to date .", "ORG The legal basis of the practice of intercepting telephone communications was also examined by the Vice - Chancellor in his judgment in the action which the applicant brought against ORG Commissioner ( see paragraphs CARDINAL - CARDINAL below ) .", "Certain changes have occurred in the organisation of the postal and telephone services since DATE , when ORG made its report . ORG , which ran both services , was then a ORG under the direct control of a Minister ( ORG ) . By virtue of ORG DATE , it became a public corporation with a certain independence of the ORG , though subject to various ministerial powers of supervision and control exercised at the material time by the ORG Secretary . ORG DATE was repealed in part and amended by LAW DATE . That Act divided ORG into CARDINAL corporations : ORG , responsible for mail , and ORG , responsible for telephones . The DATE Act made no change of substance in relation to the law governing interceptions . For the sake of convenience , references in the present judgment are to the position as it was before the DATE Act came into force .", "ORG The existence of a power vested in the Secretary of ORG to authorise by warrant the interception of correspondence , in the sense of detaining and opening correspondence transmitted by post , has been acknowledged from early times and its exercise has been publicly known ( see the PERSON report , Part I , especially paras . CARDINAL , DATE and DATE ) . The precise origin in law of this executive authority is obscure ( ibid . , para . CARDINAL ) . Nevertheless , although none of the Post Office statutes ( of DATE , DATE , DATE or DATE ) contained clauses expressly conferring authority to intercept communications , all recognised the power as an independently existing power which it was lawful to exercise ( ibid . , paras . CARDINAL and CARDINAL ) .", "ORG At the time of the PERSON report , the most recent statutory provision recognising the right of interception of a postal communication was section CARDINAL sub - section CARDINAL of the Post Office Act DATE , which provides :", "\" If any officer of ORG , contrary to his duty , opens ... any postal packet in course of transmission by post , or wilfully detains or delays ... any such postal packet , he shall be guilty of a misdemeanour ... .", "Provided that nothing in this section shall extend to ... the opening , detaining or delaying of a postal packet ... in obedience to an express warrant in writing under the hand of a Secretary of ORG . \"", "\" Postal packet \" is defined in LAW sub - section QUANTITY as meaning :", "\" a letter , postcard , reply postcard , newspaper , printed packet , sample packet or parcel and every packet or article transmissible by post , and includes a telegram \" .", "Section CARDINAL , which is still in force , reproduced a clause that had been on the statute book without material amendment since DATE .", "ORG So far as telecommunications are further concerned , it is an offence under LAW of LAW DATE if an official of ORG \" improperly divulges to any person the purport of any message \" . LAW of ORG ) Act DATE creates a similar offence in relation to telegrams . In addition , section CARDINAL of the Telegraph Act CARDINAL makes it a criminal offence if any ORG official \" shall , contrary to his duty , disclose or in any way make known or intercept the contents or any part of the contents of any telegraphic message or any message entrusted to ORG ] for the purpose of transmission \" .", "These provisions are still in force .", "ORG It was held in a case decided in DATE ( Attorney General v. ORG , ( DATE ) CARDINAL Queen ’s Bench Division CARDINAL ) that a telephone conversation is a \" telegraphic communication \" for the purposes of FAC . It has not been disputed in the present proceedings that the offences under the Telegraph Acts apply to telephone conversations .", "ORG The power to intercept telephone messages has been exercised in GPE and GPE from time to time since the introduction of the telephone . Until DATE , ORG , which was at that time a ORG , acted upon the view that the power which the ORG exercised in intercepting telephone messages was a power possessed by any operator of telephones and was not contrary to law . Consequently , no warrants by the Secretary of ORG were issued and arrangements for the interception of telephone conversations were made directly between the police authorities and ORG . In DATE , the position was reviewed by the Home Secretary and ORG ( the Minister then responsible for the administration of ORG ) and it was decided , as a matter of policy , that it was undesirable that records of telephone conversations should be made by ORG servants and disclosed to the police without the authority of the Secretary of ORG . The view was taken that the power which had for long been exercised to intercept postal communications on the authority of a warrant of the Secretary of ORG was , by its nature , wide enough to include the interception of telephone communications . Since DATE it had accordingly been the practice of ORG to intercept telephone conversations only on the express warrant of the Secretary of ORG ( see the PERSON report , paras . CARDINAL - CARDINAL ) .", "ORG considered that the power to intercept telephone communications rested upon the power plainly recognised by the Post Office statutes as existing before the enactment of the statutes ( PERSON report , para . CARDINAL ) . It concluded ( ibid . , para . CARDINAL ) :", "\" We are therefore of the opinion that the state of the law might fairly be expressed in this way .", "( a ) The power to intercept letters has been exercised from the earliest times , and has been recognised in successive Acts of ORG .", "( b ) This power extends to telegrams .", "( c ) It is difficult to resist the view that if there is a lawful power to intercept communications in the form of letters and telegrams , then it is wide enough to cover telephone communications as well . \"", "ORG Under LAW DATE , ORG \" ceased to be a ORG and was established as a public corporation of that name with the powers , duties and functions set out in the LAW . In consequence of the change of status of ORG and of the fact that ORG was no longer under the direct control of a Minister of the ORG , it became necessary to make express statutory provision in relation to the interception of communications on the authority of a warrant of the Secretary of ORG . By section CARDINAL of the Act it was therefore provided as follows :", "\" A requirement to do what is necessary to inform designated persons holding office under the ORG concerning matters and things transmitted or in course of transmission by means of postal or telecommunication services provided by ORG may be laid on ORG for the like purposes and in the like manner as , at the passing of this LAW , a requirement may be laid on the Postmaster General to do what is necessary to inform such persons concerning matters and things transmitted or in course of transmission by means of such services provided by him . \"", "ORG The DATE Act also introduced , for the first time , an express statutory defence to the offences under the Telegraph Acts mentioned above ( at paragraph CARDINAL ) , similar to that which exists under section CARDINAL para . CARDINAL of LAW DATE . This was effected by paragraph CARDINAL sub - paragraph CARDINAL of Schedule CARDINAL to the Act , which reads :", "\" In any proceedings against a person in respect of an offence under LAW of LAW DATE or LAW of ORG ) Act DATE consisting in the improper divulging of the purport of a message or communication or an offence under section CARDINAL of LAW DATE it shall be a defence for him to prove that the act constituting the offence was done in obedience to a warrant under the hand of a Secretary of ORG . \"", "ORG In the civil action which he brought against ORG Commissioner , Mr. PERSON sought various relief including declarations to the following effect :", "- that any \" tapping \" ( that is , interception , monitoring or recording ) of conversations on his telephone lines without his consent , or disclosing the contents thereof , was unlawful even if done pursuant to a warrant of the Home Secretary ;", "- that he had rights of property , privacy and confidentiality in respect of conversations on his telephone lines and that the above - stated tapping and disclosure were in breach of those rights ;", "- that the tapping of his telephone lines violated LAW article CARDINAL) of the LAW .", "In his judgment , delivered on DATE , the Vice - Chancellor noted that he had no jurisdiction to make the declaration claimed in respect of LAW article CARDINAL) of the Convention . He made a detailed examination of the domestic law relating to telephone tapping , held in substance that the practice of tapping on behalf of the police as recounted in the PERSON report was legal and accordingly dismissed the action .", "ORG The Vice - Chancellor described the central issue before him as being in simple form : is telephone tapping in aid of the police in their functions relating to crime illegal ? He further delimited the question as follows :", "\" ... the only form of telephone tapping that has been debated is tapping which consists of the making of recordings by ORG officials in some part of the existing telephone system , and the making of those recordings available to police officers for the purposes of transcription and use . I am not concerned with any form of tapping that involved electronic devices which make wireless transmissions , nor with any process whereby anyone trespasses onto the premises of the subscriber or anyone else to affix tapping devices or the like . All that I am concerned with is the legality of tapping effected by means of recording telephone conversations from wires which , though connected to the premises of the subscriber , are not on them . \" ( [ DATE ] CARDINAL All England Law Reports , p. CARDINAL )", "ORG The Vice - Chancellor held that there was no right of property ( as distinct from copyright ) in words transmitted along telephone lines ( ibid . , p. CARDINAL ) .", "As to the applicant ’s remaining contentions based on privacy and confidentiality , he observed firstly that no assistance could be derived from cases dealing with other kinds of warrant . Unlike a search of LOC , the process of telephone tapping on ORG premises did not involve any act of trespass and so was not prima facie illegal ( ibid . , p. CARDINAL ) . Secondly , referring to the warrant of the Home Secretary , the Vice - Chancellor remarked that such warrant did not \" purport to be issued under the authority of any statute or of the common law \" . The decision to introduce such warrants in DATE seemed \" plainly to have been an administrative decision not dictated or required by statute \" ( ibid . ) . He referred , however , to section CARDINAL of the Post Office Act DATE and Schedule CARDINAL to the Act , on which ORG had based certain contentions summarised as follows :", "\" Although the previous arrangements had been merely administrative , they had been set out in the PERSON report DATE , and the section plainly referred to these arrangements ; ... A warrant was not needed to make the tapping lawful : it was lawful without any warrant . But where the tapping was done under warrant ... [ section DATE ] afforded statutory recognition of the lawfulness of the tapping . \" ( ibid . , p. CARDINAL )", "\" In their essentials \" , stated the Vice - Chancellor , \" these contentions seem to me to be sound . \" He accepted that , by LAW ,", "\" ORG has provided a clear recognition of the warrant of the ORG Secretary as having an effective function in law , both as providing a defence to certain criminal charges , and also as amounting to an effective requirement for ORG to do certain acts \" ( ibid . , pp . CARDINAL - CARDINAL ) .", "The Vice - Chancellor further concluded that there was in LANGUAGE law neither a general right of privacy nor , as the applicant had contended , a particular right of privacy to hold a telephone conversation in the privacy of one ’s home without molestation ( ibid . , pp . CARDINAL - CARDINAL ) . Moreover , no duty of confidentiality existed between ORG and the telephone subscriber ; nor was there any other obligation of confidence on a person who overheard a telephone conversation , whether by means of tapping or otherwise ( ibid . , pp . CARDINAL - CARDINAL ) .", "ORG Turning to the arguments based on the Convention , the Vice - Chancellor noted firstly that the LAW was not part of the law of GPE and , as such , did not confer on the applicant direct rights that could be enforced in the NORP courts ( ibid . , p. CARDINAL ) .", "He then considered the applicant ’s argument that the LAW , as interpreted by ORG in the case of PERSON and Others ( judgment of DATE , Series A no . CARDINAL ) , could be used as a guide to assist in the determination of LANGUAGE law on a point that was uncertain . He observed that the issues before him did not involve construing legislation enacted with the purpose of giving effect to obligations imposed by the LAW . Where ORG had abstained from legislating on a point that was plainly suitable for legislation , it was difficult for the court to lay down new rules that would carry out the ORG ’s treaty obligations , or to discover for the first time that such rules had always existed . He compared the system of safeguards considered in the PERSON case with the NORP system , as described in the PERSON report , and concluded :", "\" ... Not a single one of these safeguards is to be found as a matter of established law in GPE , and only a few corresponding provisions exist as a matter of administrative procedure .", "It does not , of course , follow that a system with fewer or different safeguards will fail to satisfy LAW article CARDINAL) in the eyes of ORG . At the same time , it is impossible to read the judgment in the PERSON case without it becoming abundantly clear that a system which has no legal safeguards whatever has small chance of satisfying the requirements of that ORG , whatever administrative provisions there may be . ... Even if the system [ in operation in GPE ] were to be considered adequate in its conditions , it is laid down merely as a matter of administrative procedure , so that it is unenforceable in law , and as a matter of law could at any time be altered without warning or subsequent notification . Certainly in law any ‘ adequate and effective safeguards against ORG are wanting . In this respect LANGUAGE law compares most unfavourably with NORP law : this is not a subject on which it is possible to feel any pride in LANGUAGE law .", "I therefore find it impossible to see how LANGUAGE law could be said to satisfy the requirements of the LAW , as interpreted in the PERSON case , unless that law not only prohibited all telephone tapping save in suitably limited classes of case , but also laid down detailed restrictions on the exercise of the power in those limited classes . \"", "This conclusion did not , however , enable the Vice - Chancellor to decide the case in the way the applicant sought :", "\" It may perhaps be that the common law is sufficiently fertile to achieve what is required by the first limb of [ the above - stated proviso ] : possible ways of expressing such a rule may be seen in what I have already said . But I see the greatest difficulty in the common law framing the safeguards required by the second limb . Various institutions or offices would have to be brought into being to exercise various defined functions . The more complex and indefinite the subject - matter the greater the difficulty in the court doing what it is really appropriate , and only appropriate , for the legislature to do . Furthermore , I find it hard to see what there is in the present case to require the LANGUAGE courts to struggle with such a problem . Give full rein to the LAW , and it is clear that when the object of the surveillance is the detection of crime , the question is not whether there ought to be a general prohibition of all surveillance , but in what circumstances , and subject to what conditions and restrictions , it ought to be permitted . It is those circumstances , conditions and restrictions which are at the centre of this case ; and yet it is they which are the least suitable for determination by judicial decision .", "... Any regulation of so complex a matter as telephone tapping is essentially a matter for ORG , not the courts ; and neither the ORG nor the PERSON case can , I think , play any proper part in deciding the issue before me . \" ( ibid . , pp . CARDINAL - CARDINAL )", "He added that \" this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation \" , and continued :", "\" However much the protection of the public against crime demands that in proper cases the police should have the assistance of telephone tapping , I would have thought that in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses . The fact that a telephone user is suspected of crime increases rather than diminishes this requirement : suspicions , however reasonably held , may sometimes prove to be wholly unfounded . If there were effective and independent safeguards , these would not only exclude some cases of excessive zeal but also , by their mere existence , provide some degree of reassurance for those who are resentful of the police or believe themselves to be persecuted . \" ( ibid . , p. CARDINAL )", "ORG As a final point of substance , the Vice - Chancellor dealt , in the following terms , with the applicant ’s contention that as no power to tap telephones had been given by either statute or common law , the tapping was necessarily unlawful :", "\" I have already held that , if such tapping can be carried out without committing any breach of the law , it requires no authorisation by statute or common law ; it can lawfully be done simply because there is nothing to make it unlawful . Now that I have held that such tapping can indeed be carried out without committing any breach of the law , the contention necessarily fails . I may also say that the statutory recognition given to the Home Secretary ’s warrant seems to me to point clearly to the same conclusion . \" ( ibid . , p. CARDINAL )", "ORG The Vice - Chancellor therefore held that the applicant ’s claim failed in its entirety . He made the following concluding remarks as to the ambit of his decision :", "\" Though of necessity I have discussed much , my actual decision is closely limited . It is confined to the tapping of the telephone lines of a particular person which is effected by ORG LOC in pursuance of a warrant of the Home Secretary in a case in which the police have just cause or excuse for requesting the tapping , in that it will assist them in performing their functions in relation to crime , whether in prevention , detection , discovering the criminals or otherwise , and in which the material obtained is used only by the police , and only for those purposes . In particular , I decide nothing on tapping effected for other purposes , or by other persons , or by other means ; nothing on tapping when the information is supplied to persons other than the police ; and nothing on tapping when the police use the material for purposes other than those I have mentioned . The principles involved in my decision may or may not be of some assistance in such other cases , whether by analogy or otherwise : but my actual decision is limited in the way that I have just stated . \" ( ibid . , p. CARDINAL )", "ORG Following the Vice - Chancellor ’s judgment , the necessity for legislation concerning the interception of communications was the subject of review by the Government , and of NORP discussion . On DATE , on the publication of ORG , the ORG Secretary announced in ORG that after carefully considering the suggestions proffered by the Vice - Chancellor in his judgment , the ORG had decided not to introduce legislation . He explained the reasons for this decision in the following terms :", "\" The interception of communications is , by definition , a practice that depends for its effectiveness and value upon being carried out in secret , and can not therefore be subject to the normal processes of parliamentary control . Its acceptability in a NORP society depends on its being subject to ministerial control , and on the readiness of the public and their representatives in ORG to repose their trust in the Ministers concerned to exercise that control responsibly and with a right sense of balance between the value of interception as a means of protecting order and security and the threat which it may present to the liberty of the subject .", "Within the necessary limits of secrecy , I and my right hon . Friends who are concerned are responsible to ORG for our stewardship in this sphere . There would be no more sense in making such secret matters justiciable than there would be in my being obliged to reveal them in the ORG . If the power to intercept were to be regulated by statute , then the courts would have power to inquire into the matter and to do so , if not publicly , then at least in the presence of the complainant . This must surely limit the use of interception as a tool of investigation . The Government have come to the clear conclusion that the procedures , conditions and safeguards described in the [ White ] Paper ensure strict control of interception by Ministers , are a good and sufficient protection for the liberty of the subject , and would not be made significantly more effective for that purpose by being embodied in legislation . The Government have accordingly decided not to introduce legislation on these matters \" ( ORG , ORG , DATE , cols . CARDINAL - CARDINAL ) .", "He gave an assurance that \" ORG will be informed of any changes that are made in the arrangements \" ( ibid . , col . CARDINAL ) .", "ORG In the course of the NORP proceedings leading to the enactment of LAW DATE , attempts were made to include in the PERSON provisions which would have made it an offence to intercept mail or matters sent by public telecommunication systems except pursuant to a warrant issued under conditions which corresponded substantially to those described in the White Paper . The Government successfully opposed these moves , primarily on the grounds that secrecy , which was essential if interception was to be effective , could not be maintained if the arrangements for interception were laid down by legislation and thus became justiciable in the courts . The present arrangements and safeguards were adequate and the proposed new provisions were , in the ORG ’s view , unworkable and unnecessary ( see , for example , the statement of ORG in ORG on DATE , ORG , cols . CARDINAL - CARDINAL ) . The DATE Act eventually contained a re - enactment of section CARDINAL of the Post Office Act DATE applicable to ORG , para . CARDINAL , of the DATE Act ) . LAW of LAW itself continues to apply to ORG .", "ORG In its report presented to ORG in DATE ( ORG ) , ORG , which had been appointed in DATE , also considered the possible need for legislation in this field . In the chapter entitled \" Investigative powers and the rights of the citizen \" , ORG made the following recommendation in regard to what it termed \" surreptitious surveillance \" ( paras . CARDINAL - CARDINAL.CARDINAL ) :", "\" ... [ A]lthough we have no evidence that the existing controls are inadequate to prevent abuse , we think that there are strong arguments for introducing a system of statutory control on similar lines to that which we have recommended for search warrants . As with all features of police investigative procedures , the value of prescribing them in statutory form is that it brings clarity and precision to the rules ; they are open to public scrutiny and to the potential of Parliamentary review . So far as surveillance devices in general are concerned this is not at present so .", "...", "We therefore recommend that the use of surveillance devices by the police ( including the interception of letters and telephone communications ) should be regulated by statute . \"", "These recommendations were not adopted by the Government .", "ORG DATE , ORG , a permanent body set up by statute in DATE for the purpose of promoting reform of the law , produced a report on breach of confidence ( presented to ORG in DATE Paper CARDINAL ) . This report examined , inter alia , the implications for the civil law of confidence of the acquisition of information by surveillance devices , and made various proposals for reform of the law ( paras . PERCENT ) . ORG , however , felt that the question whether \" the methods which the police ... may use to obtain information should be defined by statute \" was a matter outside the scope of its report ( paras . CARDINAL and CARDINAL in fine ) . No action has been taken by the Government on this report .", "ORG Details of the current practices followed in relation to interceptions are set out in the Government ’s ORG of DATE . The practices there summarised are essentially the same as those described and recommended in the PERSON report , and referred to in NORP statements by successive Prime Ministers and Home Secretaries in DATE , DATE , DATE and DATE .", "ORG The police , ORG and Excise and ORG may request authority for the interception of communications for the purposes of \" detection of serious crime and the safeguarding of the security of the ORG \" ( paragraph CARDINAL of the White Paper ) . Interception may take place only on the authority of the Secretary of ORG given by warrant under his own hand . In GPE and GPE , the power to grant such warrants is exercised by the ORG Secretary or occasionally , if he is ill or absent , by another Secretary of ORG on his behalf ( ibid . ) . In the case of warrants applied for by the police to assist them in the detection of crime , CARDINAL conditions must be satisfied before a warrant will be issued :", "( a ) the offence must be \" really serious \" ;", "( b ) normal methods of investigation must have been tried and failed or must , from the nature of things , be unlikely to succeed ;", "( c ) there must be good reason to think that an interception would be likely to lead to an arrest and a conviction .", "ORG As is indicated in the PERSON report ( paras . CARDINAL - CARDINAL ) , the concept of \" serious crime \" has varied from time to time . Changing circumstances have made some acts serious offences which were not previously so regarded ; equally , some offences formerly regarded as serious enough to justify warrants for the interception of communications have ceased to be so regarded . Thus , the interception of letters believed to contain obscene or indecent matter ceased in DATE ( PERSON report , para . CARDINAL ) ; no warrants for the purpose of preventing the transmission of illegal lottery material have been issued since DATE ( ibid . , para . CARDINAL ) . \" Serious crime \" is defined in the White Paper , and subject to the addition of the concluding words has been consistently defined since DATE ( PERSON report , para . CARDINAL ) , as consisting of \" offences for which a man with no previous record could reasonably be expected to be sentenced to CARDINAL GPE imprisonment , or offences of lesser gravity in which either a large number of people is involved or there is good reason to apprehend the use of violence \" ( ORG , para . CARDINAL ) . In DATE , the ORG Secretary announced to ORG that , on a recommendation made by Lord PERSON in his second report ( see paragraph DATE below ) , the concept of a serious offence was to be extended to cover offences which would not necessarily attract a penalty of CARDINAL PERSON imprisonment on first conviction , but in which the financial rewards of success were very large ( ORG , ORG , DATE , col . CARDINAL ) .", "Handling ( including receiving ) stolen goods , knowing or believing them to be stolen , is an offence under LAW of LAW DATE , carrying a maximum penalty of DATE imprisonment . According to the Government , the receiving of stolen property is regarded as a very serious offence since the receiver lies at the root of much organised crime and encourages large - scale thefts ( see the PERSON report , para . CARDINAL ) . The detection of receivers of stolen property was at the time of the PERSON report ( ibid . ) , and remains , CARDINAL of the important uses to which interception of communications is put by the police .", "ORG Applications for warrants must be made in writing and must contain a statement of the purpose for which interception is requested and of the facts and circumstances which support the request . Every application is submitted to the Permanent Under - Secretary of ORG - the senior civil servant - at ORG ( or , in his absence , a nominated deputy ) , who , if he is satisfied that the application meets the required criteria , submits it to the Secretary of ORG for approval and signature of a warrant . In a case of exceptional urgency , if the Secretary of ORG is not immediately available to sign a warrant , he may be asked to give authority orally , by telephone ; a warrant is signed and issued as soon as possible thereafter ( ORG , para . CARDINAL ) .", "In their submissions to the ORG and the ORG , the ORG supplemented as follows the information given in the White Paper . Except in cases of exceptional urgency , an application will only be considered in ORG if it is put forward by a senior officer of ORG , in practice the Assistant Commissioner ( Crime ) , and also , in the case of another police force , by the chief officer of police concerned . Close personal consideration is given by the Secretary of ORG to every request for a warrant submitted to him . In the debate on the NORP Telecommunications Bill in DATE , the then Home Secretary confirmed before ORG that he did not and would not sign any warrant for interception unless he were personally satisfied that the relevant criteria were met ( ORG , DATE , col . CARDINAL ) .", "ORG Every warrant sets out the name and address of the recipient of mail in question or the telephone number to be monitored , together with the name and address of the subscriber . Any changes require the authority of the Secretary of ORG , who may delegate power to give such authority to the Permanent Under - Secretary . If both the mail and the telephone line of a person are to be intercepted , CARDINAL separate warrants are required ( ORG , para . CARDINAL ) .", "ORG Every warrant is time - limited , specifying a date on which it expires if not renewed . Warrants are in the first place issued with a time - limit set at a defined date not exceeding DATE from the date of issue . Warrants may be renewed only on the personal authority of the Secretary of ORG and may be renewed for not more than one month at a time . In each case where renewal of a warrant is sought , the police are required first to satisfy the Permanent Under - Secretary of ORG at ORG that the reasons for which the warrant was first issued are still valid and that the case for renewal is justified : a submission to the Secretary of ORG for authority to renew the warrant is only made if the Permanent Under - Secretary is so satisfied ( ORG , para . CARDINAL ) .", "Warrants are reviewed DATE by the Secretary of ORG . When an interception is considered to be no longer necessary , it is immediately discontinued and the warrant is cancelled on the authority of the Permanent Under - Secretary of ORG at ORG . In addition to the DATE review of each warrant by the Secretary of ORG , ORG carry out their own review DATE of all warrants arising from police applications : where an interception is deemed to be no longer necessary , instructions are issued to ORG to discontinue the interception forthwith and ORG is informed so that the warrant can be cancelled ( PERSON report , paras . CARDINAL - CARDINAL ; ORG , paras . CARDINAL - CARDINAL ) .", "ORG In accordance with the recommendations of the PERSON report ( para . CARDINAL ) , records are kept in ORG , showing in respect of each application for a warrant :", "( a ) the ground on which the warrant is applied for ;", "( b ) a copy of the warrant issued or a note of rejection of the application ;", "( c ) the dates of any renewals of the warrant ;", "( d ) a note of any other decisions concerning the warrant ;", "( e ) the date of cancellation of the warrant ( ORG , para . CARDINAL ) .", "ORG On the issue of a warrant , the interception is effected by ORG . Telephone interceptions are carried out by a small staff of ORG employees who record the conversation but do not themselves listen to it except from time to time to ensure that the apparatus is working correctly . In the case of postal communications , ORG makes a copy of the correspondence . As regards the interception of communications for the purpose of the detection of crime , in practice the \" designated person holding office under the ORG \" to whom ORG is required by sub - section CARDINAL of ORG DATE to transmit the intercepted information ( see paragraph CARDINAL above ) is invariably the Commissioner of Police of the LOC . The product of the interception - that is , the copy of the correspondence or the tape - recording - is made available to a special unit of ORG who note or transcribe only such parts of the correspondence or the telephone conversation as are relevant to the investigation . When the documentary record has been made , the tape is returned to the ORG staff , who erase the recording . The tape is subsequently re - used . The majority of recordings are erased within DATE of their being taken ( PERSON report , paras . CARDINAL - CARDINAL ; ORG , para . CARDINAL ) .", "ORG A ORG to Police , issued by ORG in DATE , contained the following paragraphs in a section headed \" Supply of information by ORG to police \" :", "\" CARDINAL Head Postmasters and Telephone Managers have been given authority to assist the police as indicated in paragraph CARDINAL below without reference to ORG , in circumstances where the police are seeking information", "( a ) in the interests of justice in the investigation of a serious indictable offence ; or", "( b ) when they are acting in a case on the instructions of the Director of Public Prosecutions ; or", "( c ) when a warrant has been issued for the arrest of the offender , or the offence is such that he can be arrested without a warrant ; or", "...", "CARDINAL Head Postmasters , or ( in matters affecting the telecommunication service ) ORG , may afford the following facilities in response to a request made by the officer locally in charge of the force at the town where the Head Postmaster is stationed", "...", "( g ) Telegrams . Telegrams may be shown to the police on the authority of the sender or addressee . Apart from ORG is prepared to give authority in particular cases of serious crime where the inspection of a telegram is a matter of urgency , and will do so at once on telephonic application , by a chief officer of police or a responsible officer acting on his behalf , to ORG , ORG . ...", "...", "CARDINAL ...", "CARDINAL.CARDINAL As regards any matter not covered by CARDINAL and QUANTITY above , if the police are in urgent need of information which ORG may be able to furnish in connection with a serious criminal offence , the police officer in charge of the investigation should communicate with ORG , ORG who will be ready to make any necessary inquiries of other branches of ORG and to communicate any information which can be supplied . \"", "In DATE , ORG notified chief officers of police that paragraph CARDINAL ( g ) , described as containing advice and information to the police which was \" in some respects misleading \" , was henceforth to be regarded as deleted , with the exception of the first complete sentence . At the same time , chief officers of police were reminded that the procedures for the interception of communications were set out in the White Paper and rigorously applied in all cases .", "ORG The notes or transcriptions of intercepted communications are retained in the police interception unit for a period of DATE or for as long as they may be required for the purposes of investigation . The contents of the documentary record are communicated to the officers of the appropriate police force engaged in the criminal investigation in question . When the notes or transcriptions are no longer required for the purposes of the investigation , the documentary record is destroyed ( PERSON report , para . CARDINAL ; ORG , para . CARDINAL ) . The product of intercepted communications is used exclusively for the purpose of assisting the police to pursue their investigations : the material is not tendered in evidence , although the interception may itself lead to the obtaining of information by other means which may be tendered in evidence ( PERSON report , para . CARDINAL ; ORG , para . CARDINAL ) . In accordance with the recommendation of ORG ( PERSON report , para . CARDINAL ) , information obtained by means of an interception is never disclosed to private individuals or private bodies or to courts or tribunals of any kind ( ORG , para . CARDINAL ) .", "ORG An individual whose communications have been intercepted is not informed of the fact of interception or of the information thereby obtained , even when the surveillance and the related investigations have terminated .", "ORG For security reasons it is the normal practice not to disclose the numbers of interceptions made ( PERSON report , paras . CARDINAL - CARDINAL ; ORG , paras . CARDINAL - CARDINAL ) . However , in order to allay public concern as to the extent of interception , both the PERSON report and the White Paper gave figures for the number of warrants granted DATE over DATE their publication . The figures in the White Paper ( Appendix III ) indicate that in GPE and GPE DATE generally something CARDINAL telephone warrants and something under CARDINAL postal warrants were granted DATE by the Home Secretary . Paragraph CARDINAL of the White Paper also gave the total number of Home Secretary warrants in force on DATE for DATE ( CARDINAL ) , DATE ( CARDINAL ) and DATE ( CARDINAL ) . The number of telephones installed at DATE was , according to the Government , CARDINAL , as compared with CARDINAL at DATE . The Government further stated that over the period from DATE to DATE there was a fourfold increase in indictable crime , from CARDINAL to CARDINAL .", "ORG When the White Paper was published on DATE , the ORG Secretary announced in ORG that the ORG , whilst not proposing to introduce legislation ( see paragraph CARDINAL above ) , intended to appoint a senior member of the judiciary to conduct a continuous independent check so as to ensure that interception of communications was being carried out for the established purposes and in accordance with the established procedures . His terms of reference were stated to be :", "\" to review on a continuing basis the purposes , procedures , conditions and safeguards governing the interception of communications on behalf of the police , ORG and Excise and the security service as set out in [ the White Paper ] ; and to report to the Prime Minister \" ( ORG , DATE , cols . CARDINAL ) .", "It was further announced that the person appointed would have the right of access to all relevant papers and the right to request additional information from the departments and organisations concerned . For the purposes of his first report , which would be published , he would examine all the arrangements set out in the White Paper ; his subsequent reports on the detailed operation of the arrangements would not be published , but ORG would be informed of any findings of a general nature and of any changes that were made in the arrangements ( ibid . ) .", "ORG Lord PERSON , a Lord of Appeal in Ordinary since DATE , was appointed to carry out the review . In his first report , published in DATE , Lord PERSON recorded , inter alia , that , on the basis of a detailed examination of apparently typical cases selected at random , he was satisfied", "( i ) ORG that , in each case , the information provided by the applicant authorities to the Secretary of ORG in support of the issue of a warrant was stated with accuracy and candour and that the procedures followed within the applicant authorities for vetting applications before submission to the Secretary of ORG were appropriate to detect and correct any departure from proper standards ;", "( ii ) that warrants were not applied for save in proper cases and were not continued any longer than was necessary to carry out their legitimate purpose .", "Lord PERSON further found from his examination of the system that all products of interception not directly relevant to the purpose for which the warrant was granted were speedily destroyed and that such material as was directly relevant to that purpose was given no wider circulation than was essential for carrying it out .", "In DATE , Lord PERSON submitted his second report . As the Secretary of ORG informed ORG , Lord PERSON ’s general conclusion was that during DATE the procedure for the interception of communications had continued to work satisfactorily and the principles set out in the White Paper had been conscientiously observed by all departments concerned .", "In DATE , Lord PERSON resigned his position and was succeeded by Lord PERSON of GPE , a Lord of Appeal in Ordinary since DATE .", "ORG The process known as \" metering \" involves the use of a device called QUANTITY check printer which registers the numbers dialled on a particular telephone and the time and duration of each call . It is a process which was designed by ORG for its own purposes as the corporation responsible for the provision of telephone services . Those purposes include ensuring that the subscriber is correctly charged , investigating complaints of poor quality service and checking possible abuse of the telephone service . When \" metering \" a telephone , ORG - now ORG ( see paragraph CARDINAL above ) - makes use only of signals sent to itself .", "In the case of ORG , the ORG does not require the keeping of records of this kind but , if the records are kept , ORG may be compelled to produce them in evidence in civil or criminal cases in the ordinary way , namely by means of a subpoena duces tecum . In this respect the position of ORG does not differ from that of any other party holding relevant records as , for instance , a banker . Neither the police nor the ORG are empowered to direct or compel the production of the ORG records otherwise than by the normal means .", "However , ORG do on occasions make and provide such records at the request of the police if the information is essential to police enquiries in relation to serious crime and can not be obtained from other sources . This practice has been made public in answer to parliamentary questions on CARDINAL occasion ( see , for example , the statement by the ORG Secretary to ORG , ORG , DATE , cols . CARDINAL - CARDINAL ) .", "Commission , Government and applicant are agreed that , at least in theory , judicial remedies are available in GPE and GPE , in both the civil and the criminal courts , in respect of interceptions of communications carried out unlawfully . The remedies referred to by the Government were summarised in the pleadings as follows :", "( i ) ORG In the event of any interception or disclosure of intercepted material effected by a ORG employee \" contrary to duty \" or \" improperly \" and without a warrant of the Secretary of ORG , a criminal offence would be committed under the Telegraph Acts DATE and DATE and ORG as regards telephone interceptions ) and under LAW DATE ( as regards postal interceptions ) ( see paragraphs CARDINAL above ) . On complaint that communications had been unlawfully intercepted , it would be the duty of the police to investigate the matter and to initiate a prosecution if satisfied that an offence had been committed . If the police failed to prosecute , it would be open to the complainant himself to commence a private prosecution .", "( ii ) In addition to ( i ) above , in a case of unlawful interception by a ORG employee without a warrant , an individual could obtain an injunction from the domestic courts to restrain the person or persons concerned and ORG itself from carrying out further unlawful interception of his communications : such an injunction is available to any person who can show that a private right or interest has been interfered with by a criminal act ( see , for example , PERSON v. ORG , [ DATE ] CARDINAL All England Law Reports CARDINAL ; ORG , [ DATE ] CARDINAL All England Law Reports CARDINAL ) .", "( iii ) On the same grounds , an action would lie for an injunction to restrain the divulging or publication of the contents of intercepted communications by employees of ORG , otherwise than under a warrant of the Secretary of ORG , or to any person other than the police .", "Besides these remedies , unauthorised interference with mail would normally constitute the tort of trespass to ( that is , wrongful interference with ) chattels and so give rise to a civil action for damages .", "ORG The Government further pointed to the following possible non - judicial remedies :", "( i ) ORG In the event that the police were themselves implicated in an interception carried out without a warrant , a complaint could additionally be lodged under LAW of LAW DATE , which a chief officer of police would , by the terms of the LAW , be obliged to investigate and , if an offence appeared to him to have been committed , to refer to ORG .", "( ii ) If a complainant were able to establish merely that the police or the Secretary of ORG had misappreciated the facts or that there was not an adequate case for imposing an interception , the individual concerned would be able to complain directly to the Secretary of ORG himself or through his Member of ORG : if a complainant were to give the ORG Secretary information which suggested that the grounds on which a warrant had been issued did not in fact fall within the published criteria or were inadequate or mistaken , the ORG Secretary would immediately cause it to be investigated and , if the complaint were found to be justified , would immediately cancel the warrant .", "( iii ) Similarly , if there were non - compliance with any of the relevant administrative rules of procedure set out in the PERSON report and ORG , a remedy would lie through complaint to the Secretary of ORG who would , in a proper case , cancel or revoke a warrant and thereby terminate an interception which was being improperly carried out .", "According to the Government , in practice there never has been a case where a complaint in any of the CARDINAL above circumstances has proved to be well - founded ." ]

[ "8" ]

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[ "The applicants are members of CARDINAL family . Mr PERSON , born in DATE ( the first applicant ) , and PERSON Tuleshova , born in DATE ( the second applicant ) , are husband and wife ; PERSON PERSON , born in DATE , and Mr PERSON , born in DATE , are their sons ; Mr PERSON , born in DATE , is the second applicant 's father . They , and CARDINAL other children of the first and the second applicants , live together in CARDINAL household in the town of GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "In DATE Mr Kh bought a house from company B. It was a former shop at FAC , PERSON , which PERSON intended to convert into a dwelling . The house was free from any third party claim .", "In DATE the ORG of GPE examined an unrelated commercial dispute between company B and a third party and found that B had failed to perform as stipulated in their contract . The house was listed as pledged property in the contract and the court ordered its sale . Apparently the court was not aware that the house had already been sold to Kh .", "The sale was administered by the court bailiff . The price was set at MONEY ( ORG ) , the pre - redenomination equivalent of ORG CARDINAL , or MONEY . The first applicant offered to buy the house , and on DATE the ORG approved the sale . This decision took effect on DATE . The first applicant was registered with the real estate registry ( DATE технической инвентаризации ) as the owner of the house . Apparently the first applicant was not aware of PERSON 's right to the house and PERSON was not aware of the sale to the first applicant .", "On DATE the PERSON local administration granted a reconstruction permit by virtue of which the first applicant converted the shop into a dwelling of QUANTITY . He moved into it with CARDINAL members of his family including the other applicants .", "In DATE Kh seized the ORG with a property claim in respect of the house and challenged its sale by the bailiff . The first applicant lodged a counterclaim invoking his title to the house .", "On DATE the ORG found that the bailiff had sold the house to the first applicant unlawfully and declared the sale null and void . It annulled the first applicant 's title and ordered his and his family 's eviction . The first applicant was awarded RUR CARDINAL as reimbursement of the house purchase price by company B and the other party to the contract mentioned in paragraph CARDINAL above , and RUR CARDINAL of reconstruction costs payable by Kh .", "On DATE the applicants were served with an eviction order .", "The first applicant and PERSON appealed .", "Company B and the other party both failed to pay the amount due to the applicant under the judgment ( RUR CARDINAL ) as they became insolvent .", "On DATE ORG upheld the first instance judgment as to the substance , but reversed the award of the reconstruction costs because such a claim had never been made by the applicants .", "On DATE the Presidium of the NORP ORG quashed on supervisory review the decision of DATE by which the sale of the house to the first applicant had been ordered .", "On DATE ORG , apparently following the first applicant 's request for supervisory review , appointed an expert to assess the market value of the house . The evaluation report issued on DATE estimated it as FAC ( then an equivalent of QUANTITY ( ORG ) ) . On DATE ORG rejected the request for supervisory review .", "On DATE the applicants brought proceedings for damages against Kh , ORG , ORG and ORG . They claimed pecuniary damages of RUR CARDINAL including the reconstruction costs ( RUR CARDINAL,CARDINAL ) , the sum of RUR CARDINAL , i.e. the money which had not been paid by the insolvent debtors , and non - pecuniary damages of RUR CARDINAL . In support of their pecuniary claims they referred to the expert evaluation of CARDINAL DATE . The court joined PERSON to the proceedings as a co - defendant .", "On DATE ORG examined the case . It found that PERSON had never authorised the reconstruction works on his LOC and , relying on LAW , held that these expenses were incurred as a result of the authorities ' unlawful conduct and must be reimbursed by the ORG . The first applicant was awarded RUR CARDINAL ( then the equivalent of about ORG CARDINAL,CARDINAL ) to be paid by ORG . In so far as the applicants claimed the reimbursement of ORG CARDINAL , the court held that the first applicant “ had not made sufficient effort to recover the debt ” from company B and the other party . The remaining pecuniary and non - pecuniary claims including those by the other applicants were dismissed on the grounds that the applicants had not adduced sufficient proof of the amount they claimed as damages .", "On DATE the NORP ORG upheld the judgment of DATE .", "On DATE the applicants were ordered to leave the house by DATE .", "The applicants challenged the eviction order claiming that the award had not been paid and that no other dwelling had been made available to them .", "On DATE the ORG of GPE dismissed the applicants ' challenge to the eviction order . This decision was upheld on appeal by ORG on DATE .", "On DATE the ORG of GPE examined another request by the applicants and adjourned the eviction until DATE . The applicants appealed claiming that this was insufficient and requested an adjournment until social housing could be allocated . The extension was refused .", "DATE the applicants were served the eviction order CARDINAL times , each time with a new deadline . The applicants unsuccessfully challenged the order every time it was served .", "On DATE the bailiff of ORG of GPE informed the first applicant that the bailiff service was no longer competent to enforce awards against the ORG . He instructed the first applicant to claim his award under the judgment of DATE directly from ORG .", "On DATE the applicants and the rest of the family were evicted from the house .", "On DATE they were granted social housing in a municipal hostel where they have been living since then . For CARDINAL family members they were allocated a QUANTITY flat comprising CARDINAL rooms . The toilet , bathroom and cooking facilities are shared with other flats on the same floor , and the residence has central heating but no gas or hot water supply . The applicants received this accommodation under the terms of a social tenancy and have to pay rent . At present QUANTITY family members live in this dwelling .", "On DATE ORG informed the second applicant that the payment due to the first applicant pursuant to the judgment had been suspended because the enforcement documents had been sent to ORG “ for the inspection of the materials of the [ applicants ' ] court dispute ” . It promised to “ keep the applicants informed about the outcome of the challenge and its legal assessment ” .", "On DATE ORG paid the applicant RUR CARDINAL ( then the equivalent of about EUR CARDINAL,CARDINAL ) .", "On CARDINAL DATE the applicants obtained an expert evaluation of the market value of their social housing , which was estimated at RUR CARDINAL,CARDINAL ( then the equivalent of about ORG CARDINAL,CARDINAL ) .", "Article CARDINAL § CARDINAL of LAW of GPE provides that the damage caused to the person or property of a citizen must be compensated in full by the person who caused the damage . Pursuant to LAW , a ORG agency or a ORG official is 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 .", "Articles CARDINAL and QUANTITY of LAW provide for compensation for non - pecuniary damage . Article CARDINAL states , in particular , that non - pecuniary damage shall be compensated irrespective of any award for pecuniary damage .", "The officially fixed reference rates of the market value of residential real estate are periodically published by ORG ( ORG ) and are mandatory for the calculation of ORG - funded housing subsidies . Directive No . CARDINAL of CARDINAL DATE stated that in DATE the average price of residential real estate in GPE was RUR CARDINAL,CARDINAL ( then the equivalent of about ORG CARDINAL ) per square metre ." ]

[ "8" ]

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[ "The applicants , PERSON and GPE , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by PERSON , a lawyer practising in GPE ( GPE ) . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE a certain PERSON brought an action before ORG ( okresní soud ) against the applicants seeking the payment of ORG CARDINAL,CARDINAL ) regarding construction works he had carried out for them .", "On DATE the applicants filed a counterclaim for the payment of CZK CARDINAL ( EUR CARDINAL ) . At a hearing of DATE , ORG decided to exclude the counterclaim for a separate examination . A written decision in this respect was adopted on DATE .", "In a judgment of DATE ORG partly granted PERSON ’s action and ordered the applicants to pay him CZK CARDINAL,CARDINAL.CARDINAL ( ORG CARDINAL,CARDINAL ) with interest on late payment .", "On DATE ORG ( krajský soud ) , upon the applicants’ appeal , modified ORG judgment in that it dismissed PERSON ’s action .", "In the meantime , on DATE , ORG had partly stayed the proceedings on the applicants’ counterclaim and ordered PERSON to pay them CZK CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) .", "On DATE ORG quashed this judgment in respect of the court ’s order that PERSON had to pay the applicants the sum requested and reimburse them incurred costs and expenses , and sent this part of the case to ORG .", "It appears that the proceedings are still pending .", "The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) ." ]

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[ "The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE .", "The facts of the case , as submitted by the applicant , may be summarised as follows .", "The applicant was a member of ORG ( “ the police ” ) from DATE . He was attached to ORG , the then secret police . ORG of DATE entitled members of the police , in case of their dismissal , to several allowances the amount of which depended on the duration of their service in the police . On DATE the applicant was dismissed for redundancy pursuant to LAW ) ( a ) of ORG of DATE , as amended . Prior to the applicant ’s dismissal , on DATE , the aforesaid LAW was amended in that , pursuant to LAW ( CARDINAL ) , members of the police who were dismissed for redundancy between CARDINAL DATE and CARDINAL DATE were not entitled to the above allowances .", "On CARDINAL DATE the applicant filed a petition to ORG pursuant to LAW . He alleged that his fundamental rights were violated in that , as a result of enactment of LAW of ORG of DATE , he was deprived of allowances to which he had been entitled , in case of dismissal , throughout his previous service in the police . The applicant explained that he had unsuccessfully requested persons who had standing to do so to bring proceedings before ORG with a view to having the conformity of the relevant law with the LAW determined .", "On DATE ORG rejected the petition as being manifestly ill - founded . The decision stated that in the applicant ’s case there was no appearance of a violation of rights which ORG could examine in proceedings under LAW ) of the LAW .", "In a letter of CARDINAL DATE the president of ORG informed the applicant , in reply to the latter ’s complaint , that ORG lacked jurisdiction to examine whether a law was in conformity with the LAW in proceedings brought under LAW ) of the LAW .", "On DATE the applicant claimed , before ORG , compensation for damage caused by the above amendment to ORG of DATE . The applicant requested that the ORG seize ORG with the preliminary issue whether or not LAW of ORG of DATE was in conformity with LAW .", "On DATE ORG dismissed the applicant ’s request that the proceedings concerning his claim for damages be stayed and that the preliminary question be submitted to ORG . The decision stated that ORG did not share the applicant ’s view that LAW of ORG of DATE , as amended on DATE , was contrary to the LAW , or to any law or to any international treaty to which GPE was a party as required by LAW b ) of LAW .", "On DATE ORG upheld ORG decision of CARDINAL DATE .", "On DATE the ORG delivered a judgment by which it dismissed the applicant ’s claim for damages . ORG noted that the applicant did not complain that his former employer had acted unlawfully when it had not paid the allowances in question to the applicant upon the termination of his service in the police . The decision stated that the aim of the applicant ’s action was to invalidate LAW of ORG of DATE . As the applicant had failed to show that the defendant - GPE represented by ORG - had caused damage to him , his action could not be granted .", "The applicant appealed and claimed that the question whether LAW of the of ORG of DATE was in conformity with the LAW should first be determined by ORG .", "On DATE ORG upheld ORG judgment of DATE .", "LAW , as in force at the relevant time , provides that ORG may start proceedings upon a petition ( “ podnet ” ) lodged by legal or natural persons alleging a violation of their rights .", "In accordance with ORG practice ( decision ORG CARDINAL/CARDINAL of DATE ) , ORG can not proceed with a petition under LAW ) of the LAW when the issue to be determined depends on the assessment whether or not a law is in conformity with the LAW as such proceedings can be brought only by CARDINAL of the Members of ORG , by the President of GPE , by the Government , by a court ( in the context of examination of a case pending before it ) or by ORG .", "Pursuant to LAW b ) of LAW , a court shall suspend proceedings when it comes to the conclusion that a generally binding legal rule concerning the subject - matter of the case before it is contrary to LAW , to a law or to an international treaty by which GPE is bound . In such a case the issue concerning the possible conflict of laws shall be submitted for adjudication to ORG ." ]

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[ "The applicant was born in DATE and lives in Szentendre .", "On DATE ORG filed an action for divorce and child custody against the applicant before ORG . She further indicated in the motion that she wished to settle the division of matrimonial property in separate legal proceedings .", "On DATE the plaintiff requested ORG to establish her ownership of a common real estate and to divide the matrimonial property .", "After having held several hearings , ORG delivered a partial judgment on DATE , dissolving the parties’ marriage , deciding about the child ’s placement and regulating the applicant ’s access rights . On appeal ORG upheld the first instance judgment on DATE .", "As regards the division of matrimonial property , ORG delivered its judgment on DATE , which was partly modified on appeal by ORG on DATE .", "Despite the final judgment regulating the applicant ’s access rights ( see paragraph CARDINAL above ) , the mother failed to comply with the arrangements , therefore preventing the applicant from seeing his son .", "On DATE the applicant brought an action before the Budapest II / III District Court , requesting the modification of his child ’s placement . Moreover , he requested joint exercise of his parental rights related to the management of his child ’s property . He claimed that the mother had not acted in the child ’s best interest when concluding an exchange agreement concerning a real estate in the child ’s property , which had been approved by the competent guardianship authority on DATE .", "On DATE ORG dismissed the applicant ’s action . On appeal , ORG upheld the first - instance judgment on DATE ." ]

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[ "The applicant was born in DATE . He resides in GPE in GPE , where he is employed as a police officer with ORG of GPE ( ORG unutrašnjih poslova PERSON , hereinafter “ the NORP ” ) .", "The facts , as submitted by the parties , may be summarised as follows .", "On DATE and DATE respectively , ORG adopted CARDINAL decisions whereby , inter alia , all of its employees who resided and worked in GPE were to be paid double salaries .", "On DATE the ORG issued a decision stating that the police officers in question were entitled to have their salaries increased by PERCENT , depending on the circumstances .", "NORP In reality , the applicant only received the increase approved by ORG , amounting to significantly less than the doubling of his salary envisaged by the Government .", "On DATE , therefore , the applicant filed a civil claim against ORG with ORG ( PERSON opštinski sud ) in GPE , seeking payment of the difference between the salary increase received and that granted by the Government . The applicant further requested the payment of unspecified amounts on account of the related pension and disability insurance contributions .", "On DATE ORG ruled in favour of the applicant and ordered his employer to pay :", "i. MONEY ( “ ORG ” ) ( MONEY ( “ EUR ” ) at the relevant time ) in respect of the difference between the salary received from DATE and that granted by the ORG , plus statutory interest ;", "ii . the extra pension and disability insurance contributions for the above period in respect of this additional salary to the relevant ORG fund ; and", "iii . ORG CARDINAL ( approximately EUR CARDINAL ) for his legal costs .", "On DATE ORG ( Okružni sud ) in GPE reversed that judgment and rejected the applicant ’s claim . In its reasoning ORG held , inter alia , that the applicable domestic regulation was contained in the decision of ORG adopted on DATE . This judgment was served on the applicant on DATE .", "Many of the applicant ’s colleagues ( hereinafter “ the plaintiffs ” ) had lodged separate claims with ORG concerning the same issue , some of which were successful while others were unsuccessful : in CARDINAL other judgments rendered DATE and DATE , the same ORG ruled in favour of the plaintiffs , notwithstanding the fact that their claims were based on the same facts as those in the applicant ’s case and concerned identical legal issues . In its reasoning in these other cases , ORG held , inter alia , that the GPE salaries had to be paid in accordance with ORG decisions of DATE and/or DATE .", "Of the CARDINAL judgments mentioned above , in CARDINAL cases the respondent lodged appeals on points of law ( revizije ) with ORG ( PERSON , see paragraphs CARDINAL and CARDINAL below ) . In the remaining CARDINAL cases , however , the respondent lodged no such appeal , apparently in the light of the statutory threshold ( see paragraph CARDINAL below ) .", "The Government provided examples of relevant case - law adopted by ORG , in particular six separate judgments , of which one had been issued on DATE and the remaining CARDINAL between DATE and DATE . In each case , deciding upon appeals on points of law , ORG had ruled against the plaintiffs , albeit with somewhat different reasoning compared with that employed by ORG . In particular , ORG had held , inter alia , that the ORG ’s decision of CARDINAL DATE was not directly applicable .", "In the meantime , on DATE , ORG ( PERSON odeljenje ) of ORG held a meeting which was meant to resolve the issue of how to rule in all cases like the applicant ’s ( see paragraph CARDINAL below ) . In TIME of this meeting , it was noted , inter alia , that in CARDINAL cases registered in DATE where appeals on points of law had been considered , ORG had in fact confirmed the lower courts’ rulings in favour of the plaintiffs ( PERSON CARDINAL/CARDINAL and PERSON CARDINAL/CARDINAL ) . The meeting , however , was ultimately adjourned pending the outcome of a case which had been brought before ORG ( ORG ) concerning the abstract review of the constitutionality of the ORG ’s decision adopted on DATE . On DATE ORG held that the impugned decision was unconstitutional .", "In CARDINAL separate cases the plaintiffs thereafter lodged their appeals with ORG ( ustavne žalbe ) , but , according to the information contained in the case file , these proceedings are all still pending .", "The applicant was not entitled to lodge an appeal on points of law since the value of his claim was below the threshold of QUANTITY . He did not attempt to obtain constitutional redress .", "The relevant provisions are set out in the PERSON and Others v. GPE judgment ( nos . CARDINAL , CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , DATE , DATE , DATE , GPE , ORG , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL , CARDINAL/CARDINAL , GPE , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL , § § DATE , DATE ) .", "LAW provides , inter alia , that all parties shall be entitled to the equal protection of their rights .", "Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL provide that parties may file an appeal on points of law ( revizija ) with ORG . They may do so within DATE following receipt of a final decision rendered at second instance , and only if the relevant legislation , procedural or substantive , has been breached by the lower courts .", "Article CARDINAL § CARDINAL provides , inter alia , that an appeal on points of law is “ not admissible ” in pecuniary disputes ( kad se tužbeni zahtev odnosi na potraživanje u novcu ) where the “ value of the part of the final judgment being contested does not exceed QUANTITY ” .", "Article CARDINAL provides that an appeal on points of law is admissible in employment - related cases which concern one ’s hiring or dismissal or the “ existence ” of one ’s employment ( u parnicama o sporovima o zasnivanju , postojanju i prestanku radnog odnosa )", "NORP In accordance with Articles CARDINAL and CARDINAL - CARDINAL , inter alia , ORG , should it accept an appeal on points of law lodged by one of the parties concerned , has the power to overturn and/or amend the impugned judgment or quash it and order a re - trial before the lower courts .", "Article CARDINAL provides that a case may be re - opened if ORG has in the meantime rendered a judgment in respect of GPE concerning the same or a similar legal issue .", "Article QUANTITY provides , inter alia , that a meeting of a division ( sednica odeljenja ) of ORG shall be held if there is an issue as regards the consistency of its case - law . Any opinions ( pravna shvatanja ) adopted in such a meeting are binding for all panels ( veća ) of the division in question ." ]

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[ "The applicant was born in DATE and lives in the town of GPE .", "On DATE ORG of GPE convicted the applicant of theft and sentenced him to DATE imprisonment . On DATE ORG upheld the judgment .", "On DATE the applicant asked the President of ORG to apply for supervisory review of the above judgments on a number of legal grounds . After leave had been granted , on DATE the ORG of ORG upheld the conviction but reduced the applicant ’s sentence to DATE and DATE because of an error in the calculation of the term . The applicant was not brought to the hearing .", "The applicant made further attempts to obtain a review of his conviction and sentence . Apparently in reply to CARDINAL of those applications , by a letter of CARDINAL DATE ORG notified the applicant that they had applied for supervisory review of the judgments of DATE and DATE . It appears that the scope of the application for review was limited to an argument that the trial court had erred in determining the prison regime to be applied to the applicant without having regard to the cancellation of his conviction in DATE for another offence . The applicant received that letter on DATE .", "It appears that on DATE the applicant submitted his observations in relation to that request . However , in the meantime , on DATE the ORG of ORG had already examined the supervisory review application and found that the DATE conviction had been cancelled in DATE and should not have been taken into consideration when the trial court decided whether there had been a repeated commission of a criminal offence ( recidivism ) . It concluded that the applicant ’s acts had constituted dangerous rather than “ particularly ” dangerous recidivism , and changed the type of the correctional facility in which the applicant was to serve his sentence . The ORG upheld the judgments of CARDINAL DATE and DATE in the remaining part . The applicant was not brought to that hearing . On DATE he was told that the review had taken place , but a copy of the decision was not given to him .", "The applicant served his sentence in correctional colony no . LAW situated in the village of PERSON in GPE .", "According to the applicant , on DATE the colony administration informed the detainees that a special - purpose squad would be brought to the colony “ to discipline detainees ” .", "On DATE CARDINAL officers of the special - purpose squad arrived at the colony in order to “ render practical assistance in carrying out searches and prophylactic measures ” . On DATE the wardens and the officers of the squad searched the applicant ’s cell . The applicant objected to the search and the officers intimidated him , beat him up and damaged his personal belongings . The applicant received no medical assistance and the colony doctor refused to record his injuries . The colony administration subsequently refused to dispatch his complaints to the prosecutor .", "According to the ORG , the Director of ORG of ORG ordered a series of searches in detention facilities with a view to seizing unauthorised items kept by detainees in their cells which could be used for an escape .", "Searches were carried out in the applicant ’s cell on DATE . According to a report dated DATE , the use of force was accounted for by the applicant ’s insults to officers . A report drawn up on DATE indicated that the applicant had uttered insults and threats of reprisals . The Government submitted copies of reports by CARDINAL officers to their superior , stating that during the search on DATE the applicant had uttered insults and threats of reprisals to the officers . Another officer stated that the applicant had objected to the search and had swung his hands ; because of his refusal to stop after a warning , his hand had been held behind his back , he “ had been held in a posture preventing resistance ” and had been placed in a separate room pending the search in his cell . A report drawn up by the colony medical assistant indicated that no injuries had been detected on the applicant ’s body .", "Several detainees complained to ORG , in charge of supervising penitentiary institutions , about the events of DATE . They alleged that they and certain other detainees , including the applicant , had been beaten up by the squad members , with the tacit agreement of the colony administration .", "On DATE the Bratsk Penitentiary Supervising Prosecutor ’s Office refused to initiate criminal proceedings against the squad members . The assistant prosecutor indicated that the squad intervention had been duly authorised by ORG on DATE ( decrees nos . CARDINAL and CARDINAL ) . The squad officers wore camouflage with their ORG numbers and balaclava masks . On DATE during the search of his cell the applicant had refused to comply with orders ( to stay in the corridor against the wall ) , and had threatened the officers with reprisals , insulting them and pushing them away . Therefore , on an order from the colony chief officer the applicant was immobilised . During another cell search on DATE the applicant behaved in the same way and also incited other detainees to riot . In order to put a stop to his actions he was immobilised . Special means and weapons were not used . The assistant prosecutor interrogated the complainants and other detainees , some of whom however had stated that special means or weapons had been used against detainees .", "On DATE , on a complaint by the applicant , an official of ORG informed him as follows . On DATE CARDINAL officers of the special - purpose squad had arrived in the colony . The applicant prevented the wardens from carrying out searches and assaulted them verbally and physically . Following the searches , the doctor visited the detainees to find out if they had sustained any injuries . The detainees did not make any complaints or requests .", "Detainees and the premises where they live may be searched ( Article CARDINAL § § CARDINAL 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 disorders or group violations of public order by detainees , as well as to apprehend ( задержание ) offenders who persistently disobey or resist the officers ( section CARDINAL ) .", "Under LAW of LAW of Criminal Procedure , in force at the material time , a prosecutor took part in a hearing before a supervisory review court . A convict and his or her counsel could be summoned if the court found it necessary . If summoned , they were to be afforded an opportunity to take cognisance of the application for supervisory review and to make oral submissions at the hearing . By its ruling of DATE , ORG declared LAW unconstitutional in so far as it allowed a supervisory - instance court to examine the case without providing the convicted or acquitted person and their counsel with an opportunity to know the contents of the request for supervisory review lodged by the prosecutor , if the latter sought annulment of the final judgment on grounds unfavourable to that person . ORG made the same findings in respect of the lack of a legal requirement to notify the convicted or acquitted person and their counsel of the time when and place where the supervisory review hearing would take place . Failing that , the above persons would be unable to state their position to the court .", "A supervisory review court was not bound by the scope of the application for supervisory review and was under an obligation to review the criminal case in its entirety ( LAW . It could uphold , amend or quash any of the earlier judgments , vary the sentence , discontinue the criminal proceedings or remit the matter for a new consideration by the trial or appeal court . It could not , however , increase the sentence or re - categorise the defendant ’s actions as a more serious offence ( ibid . ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicants are :", "Mr PERSON , born in DATE ,", "Ms Deshi Abukhadzhievna GPE , born in DATE ,", "Mr PERSON , born in DATE ,", "PERSON , born in DATE ,", "Ms Diana Isayevna Sagayeva , born in DATE ,", "Ms Elza Isayevna Sagayeva , born in DATE ,", "Ms Selita Vozukayeva , born in DATE ,", "Mr PERSON , born in DATE ,", "Ms Petimat Abdulvakhabovna GPE , born in DATE .", "PERSON , born in DATE .", "The applicants are NORP nationals who live in GPE , GPE .", "The first and second applicants are married and are the parents of the third applicant and his brother , Mr PERSON , who was born in DATE . The seventh applicant is the wife of Mr PERSON . The third applicant is married to the fourth applicant and they have CARDINAL children : the fifth and sixth applicants and Mr PERSON , who was born in DATE . The eighth and ninth applicants are a brother and sister - in - law of PERSON PERSON PERSON . The eighth applicant is also an uncle of PERSON PERSON . The tenth applicant is a sister of Mr PERSON and an aunt of Mr PERSON .", "CARDINAL members of the PERSON family lived in a family compound at CARDINALA Sheripova Street , ORG . The compound consisted of QUANTITY houses in QUANTITY courtyard . The first , second and tenth applicants lived in the first building . Mr PERSON and the seventh applicant lived in the second building . The eighth and ninth applicants lived in the third building . Ms S. GPE , a sister of Mr PERSON and an aunt of PERSON PERSON , whose permanent residence was in PERSON , temporarily resided at CARDINALA PERSON street as well .", "At TIME on DATE a group of CARDINAL armed men in camouflage uniforms wearing masks came to the family compound . They first broke down the doors to the houses of the first and eighth applicants . Then they went to the house of Mr PERSON , broke down the door and apprehended him . They took him into the street and walked towards their vehicles , which they had apparently parked up the road , a short distance from the house . The applicants heard the sound of armoured personnel carriers ( ORG ) while they were standing in the yard outside their houses . They were convinced that the armed men were NORP servicemen as they spoke NORP without an accent , and a curfew prevented civilians from being out on the streets at TIME .", "The account of the events was given in written statements by the first , second , seventh , DATE and tenth applicants . PERSON , their neighbour , stated in writing that at TIME on DATE he had seen military vehicles drive past his house along FAC . He had then heard them stop not far from his house before the engines were turned off . He had heard the vehicles again TIME as they were driving away . Ms NORP , another neighbour , confirmed in writing that at TIME on DATE she had heard an ORG park not far from her house and had then heard people talking in NORP .", "The Government submitted that in the course of the investigation in case no . DATE it was established that at TIME on DATE unidentified persons in camouflage uniforms and masks had abducted Mr PERSON from a house at LOC , ORG .", "In TIME CARDINAL DATE the first applicant went to ORG , ORG , the local police department , and ORG to submit written complaints concerning the events of the previous night . He was questioned by an investigator , PERSON . , who later also questioned the second , seventh , eighth and tenth applicants at ORG . When the first applicant met the head of the ORG , the latter told him that he had no influence over the fate of persons held at ORG .", "DATE the first applicant was received by ORG . According to the first applicant , the Commander listened to his story , accepted the written complaint , and left the room without saying a word or promising to conduct an investigation .", "NORP In subsequent DATE the applicants visited several prisons in GPE , including GPE , GPE and the organised crime unit in ORG , but received no information about their missing relative . They also made unsuccessful attempts to find intermediaries to track him down .", "On DATE the Urus - Martan District Prosecutor ’s Office opened criminal investigation no . ORG into the abduction of Mr PERSON .", "The applicants sent numerous applications to various ORG authorities , copies of which have been submitted to the ORG . In particular , on DATE the first applicant applied in writing to the Military Commander , ORG , ORG ( ORG ) and the Urus - Martan police , requesting assistance in locating Mr PERSON and securing his release . The applications filed with ORG and ORG of GPE were forwarded to ORG . The applications filed with ORG of ORG ( UGA ) were forwarded to ORG of military unit no . CARDINAL . Those filed with ORG were forwarded to the Urus - Martan police .", "On DATE the Urus - Martan District Prosecutor ’s Office granted the first applicant victim status in the criminal proceedings . According to the Government , he was questioned on DATE . The first applicant was informed of the decision to grant him victim status on DATE .", "On DATE the Urus - Martan District Prosecutor ’s Office decided to suspend the investigation . In the decision it was stated that “ all possible investigative measures were taken , [ however , ] the persons to be charged were not identified , and the term of the preliminary investigation has expired . ” The decision did not specify what investigative measures had actually been taken . The first applicant was informed of the decision on DATE .", "On DATE ORG informed the first applicant that his letter had been included in the criminal case file and that steps were being taken to establish the identity of the perpetrators of the crime .", "On DATE ORG informed the applicants that the investigation had been reopened on an unspecified date and that the department was taking investigative measures in liaison with ORG of GPE .", "On DATE the ORG representatives , the ORG , requested ORG to provide information on the status of the criminal investigation and the name of the investigator , as well as copies of the decisions to open the criminal investigation , to suspend it , and to grant victim status .", "On DATE ORG informed the PERSON that criminal case no . PERSON had been suspended since , although all investigative measures had been taken , the perpetrators of the crime had not been identified and Mr PERSON whereabouts had not been established . The letter further stated that PERSON . was the investigator in the case and that copies of the decisions to open and suspend the case and to grant victim status to the first applicant had been sent to the latter .", "On DATE ORG of military unit no . CARDINAL informed the first applicant that his letter had been examined and found not to contain any evidence of the involvement of military servicemen in the abduction of Mr PERSON .", "On DATE the PERSON requested PERSON Prosecutor ’s Office to provide the first applicant with information on the status of the criminal investigation and copies of the relevant decisions .", "On DATE ORG of GPE instructed ORG to provide it with detailed information on the results of the investigation and on the grounds of the decision to suspend the investigation if such a decision had been taken . No further information was received by the applicants on this subject .", "On DATE ORG quashed the decision of DATE to suspend the investigation and resumed the proceedings . The first applicant was informed accordingly .", "On DATE the investigation was again suspended on account of the failure to identify the perpetrators . The first applicant was notified of the decision .", "On DATE ORG for ORG and ORG in the LOC informed the first applicant that his application had been forwarded to ORG of the ORG . According to the letter , ORG of military unit no . CARDINAL had opened a criminal investigation and referred it to ORG .", "On DATE the ORG informed the first applicant that PERSON PERSON had not been detained by the ORG as there had been no lawful grounds for his detention , and that he was not suspected of any offences . It was also stated that the ORG was taking the necessary measures to identify those involved in Mr PERSON ’s apprehension and to establish his whereabouts .", "On DATE the PERSON asked ORG to grant the applicants access to the case file so as to enable them to appeal against the decision to suspend the investigation . Although the prosecutor received the letter on DATE , neither the applicants nor the ORG received a response .", "On DATE the Urus - Martan District Prosecutor ’s Office quashed the decision of DATE and resumed the investigation . The first applicant was informed accordingly .", "On DATE the investigation was again suspended on account of the failure to identify the perpetrators . The first applicant was notified of the decision .", "On DATE , an official from ORG of ORG of GPE , sent the first applicant a letter informing him that inquiries concerning the whereabouts of his son had been sent to the Departments responsible for the Execution of Sentences of GPE and of other regions of LOC and to ORG of ORG in GPE . A profile of Mr PERSON had been sent to all ORG of the ORG in GPE , as well as to law - enforcement agencies in the Urus - Martan district . However , PERSON had not received any positive replies to any of the inquiries .", "On DATE the Urus - Martan District Prosecutor ’s Office informed the first applicant that requests for certain investigative measures had been sent to district prosecuting authorities of GPE . Requests to activate search measures had also been sent to ORG district department of the interior . However , despite the measures taken it was proving impossible to identify the perpetrators or establish Mr PERSON ’s whereabouts .", "On DATE the Prosecutor ’s Office of GPE quashed the decision to suspend the investigation of DATE and resumed the proceedings . The decision stated , inter alia , that in the course of the resumed investigation it would be necessary to verify the first applicant ’s allegations that his son had been apprehended by officers of the Urus - Martan district military commander ’s office and the Urus - Martan district department of the ORG . It ordered ORG to take the investigative steps required . The first applicant was notified of the decision .", "On DATE ORG suspended the investigation on the ground that although all necessary investigative measures had been taken the perpetrators could not be identified . The decision did not specify any measures actually taken .", "On DATE ORG resumed the investigation on account of the necessity to take additional investigative measures . The first applicant was informed accordingly .", "After that the investigation was again suspended on DATE , resumed on DATE , suspended on DATE and again resumed on CARDINAL DATE . According to the ORG , it has been pending since that date .", "According to the applicants , the investigative authorities have never inspected the scene of the abduction or questioned their neighbours , who had witnessed the events . Despite their numerous requests , they had not received any information concerning any other investigative measures taken . According to the ORG , an inspection of the PERSON house in FAC was carried out on an unspecified date . No evidence was found or seized .", "The third applicant lived together with his family at CARDINAL FAC , ORG . His son , Mr PERSON , who born in DATE , also lived at that address . At TIME on DATE CARDINAL armed men in masks approached the third applicant ’s house on foot after apparently leaving their vehicles around the corner . The whole family was asleep when the armed men climbed over the fence around their courtyard and broke down the door . CARDINAL of the men entered the house , without introducing themselves . Even when specifically asked by the applicants , they refused to show their identity papers . CARDINAL of them went into the room where the third applicant and PERSON PERSON were sleeping , and the sixth man went into the room where the fourth , fifth and sixth applicants were sleeping . They told the fourth applicant that they were conducting identity checks . The men put the third applicant and PERSON PERSON against the wall , while the fourth applicant went into another room to look for their identity papers to show them to the armed men . The men took PERSON PERSON passport and then took him outside . He was dressed in a black tracksuit with red and white details , a red T - shirt with a white stripe and slippers . Before leaving , the men contacted their vehicles by radio and told the fourth applicant that her son would be released later . As they were leaving , they broke the lights outside the PERSON house . The applicants believed that the men were NORP servicemen as they spoke NORP without an accent .", "The third , fourth and fifth applicants witnessed Mr PERSON apprehension and gave their account of the events in writing .", "The Government submitted that in the course of the investigation in case no . CARDINAL it was established that at TIME on DATE unidentified armed persons in camouflage uniforms and masks had abducted Mr PERSON from a house at CARDINAL FAC , ORG .", "In TIME CARDINAL DATE the fourth applicant applied in person to ORG , ORG , ORG , and police for information about her son . Officials of each of these agencies told her that they had not detained her son the previous night . They promised to help establish who had been on duty during TIME but ultimately provided no assistance .", "The applicants sent numerous applications to various ORG officials , copies of which have been submitted to the ORG . The applications filed with ORG and ORG of GPE were forwarded to ORG . The applications filed with ORG were forwarded to ORG of military unit no . CARDINAL . The applications filed with ORG were forwarded to the Urus - Martan police .", "On DATE the Urus - Martan District Prosecutor ’s Office opened a criminal investigation into the abduction of Mr PERSON in case no . CARDINAL .", "On DATE the Urus - Martan District Prosecutor ’s Office granted the fourth applicant victim status in the criminal proceedings .", "On an unspecified date the investigators questioned the third and fourth applicants and their neighbours .", "On DATE the Urus - Martan District Prosecutor ’s Office suspended the investigation into the abduction of Mr PERSON . In the decision to suspend the investigation it was stated that “ all possible investigative measures have been taken , [ however , ] the persons to be charged have not been identified , and the term of the preliminary investigation has expired . ” The decision did not specify what investigative measures had been actually taken . The applicants were informed of the decision in a letter of DATE .", "DATE . On DATE the PERSON applied in writing to ORG requesting information on the status of the criminal investigation and the name of the investigator , as well as copies of the decisions to open and suspend the criminal investigation and to grant victim status .", "On DATE ORG informed the ORG that investigation in criminal case no . DATE was , at that date , suspended as all investigative measures had been taken but the perpetrators of the crime had not been identified and Mr PERSON whereabouts had not been established . It was further stated that investigator PERSON . was responsible for the case and that copies of the decisions concerning the criminal proceedings had been sent to the fourth applicant .", "On DATE the PERSON wrote to ORG to ask for the first and third applicants to be granted victim status in criminal case no . DATE .", "On DATE ORG of military unit no . CARDINAL informed the third applicant that his letter had been examined but had been found not to disclose any evidence of servicemen ’s involvement in Mr PERSON abduction .", "On DATE ORG of GPE instructed ORG to provide it with detailed information on the results of the investigation and , if a decision to suspend the investigation had been taken , to provide a report on the grounds of the decision . No further information was received by the applicants on that subject .", "On DATE ORG quashed the decision of DATE to suspend the investigation and resumed the proceedings .", "On DATE the investigation was again suspended on account of the failure to identify the perpetrators . The fourth applicant was informed accordingly .", "On DATE ORG for ORG and ORG in the LOC informed the third applicant that his application had been forwarded to ORG . The letter stated , incorrectly , that ORG of military unit no . CARDINAL had opened a criminal investigation into Mr PERSON abduction and had referred it to ORG .", "On DATE the ORG informed the third applicant that the ORG had not detained Mr PERSON as there had been no lawful grounds for his detention . He had not been suspected of any criminal offences .", "On DATE the PERSON asked ORG to grant the applicants access to the case file so as to enable them to appeal against the decision to suspend the investigation . Although the Prosecutor received the letter on DATE , neither the applicants nor the ORG received a response .", "On DATE the Urus - Martan District Prosecutor ’s Office quashed the decision of DATE on the ground that the investigation was incomplete and resumed the proceedings . The fourth applicant was notified of the decision .", "On DATE the Urus - Martan District Prosecutor ’s Office again suspended the investigation on account of the failure to identify the perpetrators . The fourth applicant was informed accordingly .", "On DATE the Urus - Martan District Prosecutor ’s Office informed the fourth applicant that requests for certain investigative measures had been sent to district prosecuting authorities of GPE . Requests to activate search measures had also been sent to ORG district department of the interior . However , despite the measures taken it was proving impossible to identify the perpetrators or establish Mr PERSON whereabouts .", "On DATE the Prosecutor ’s Office of GPE quashed the decision of DATE to suspend the investigation and resumed the proceedings . The decision stated , inter alia , that in the course of the resumed investigation it would be necessary to verify the first applicant ’s allegations that his grandson had been apprehended by officers from the Urus - Martan district military commander ’s office and the Urus - Martan district department of the ORG . It ordered ORG to take the investigative steps required . The fourth applicant was notified of the decision .", "On DATE ORG suspended the investigation once again on account of the failure to identify the perpetrators . The fourth applicant was informed accordingly .", "After that the investigation was resumed on DATE , suspended on DATE , resumed on DATE , suspended on DATE , resumed on DATE , suspended on DATE and again resumed on CARDINAL DATE . According to the ORG , it has been pending since that date .", "According to the applicants , the investigative authorities have not inspected the scene of the abduction . According to the ORG , an inspection of the PERSON house in GPE street was carried out on an unspecified date . No evidence was found or seized .", "The applicants submitted that , despite their numerous requests , they have received no information about the investigative measures that have been taken .", "On DATE the first applicant filed a complaint with ORG concerning the investigating authorities’ inaction and their failure to provide him with access to case files nos . ORG and DATE . In his complaint , he stated that Mr PERSON and Mr PERSON had been apprehended by servicemen who had arrived on APCs .", "DATE . On DATE the Urus - Martan Town Court upheld the part of the complaint relating to the investigation in case no . ORG but dismissed the part relating to the investigation in case no . DATE .", "As regards case no . ORG , which concerned the abduction of PERSON PERSON , the court held , in particular :", "“ ... [ T]he decision of ORG to refuse [ the first applicant ] the right to study the materials in criminal case no . DATE is in breach of the provisions of the LAW and should be quashed .", "The materials from criminal case no . DATE ... show that at TIME on DATE unidentified men in camouflage uniforms and masks broke into the PERSON ’s house ... and took [ Mr ] PERSON with them .", "In the course of the investigation ... the following investigative measures were taken . [ The second , seventh , eighth applicants and PERSON were questioned as witnesses . Requests for certain investigative measures were sent . According to the Urus - Martan district department of the ORG , they had not apprehended [ Mr PERSON ] PERSON or taken him to their LOC . Similar responses were received from ORG district military commander ’s office , the head of military unit no . DATE , the operational - search bureau of ORG , district prosecutor ’s offices and ORG .", "On DATE [ the first applicant ] ... was granted victim status .", "In the course of the investigation [ the perpetrators ] were not identified and the whereabouts of [ Mr PERSON ] PERSON [ were not established ] , as a result of which the investigation was repeatedly suspended on account of [ the failure to identify the person ] to be charged with the offence . The investigation was suspended for the last time on DATE .", "At the same time , the materials in the case file show that the investigator failed to take all the investigative measures necessary to establish the whereabouts of the abducted person and to identify the perpetrators . In particular :", "- it has not established to which [ authority ] within the territory of the Urus - Martan district at the time of [ Mr ] PERSON apprehension the APCs belonged , where each [ ORG ] was located at the time of the abduction and on whose orders it was being used ;", "- neither the heads of the [ authorities ] which operated APCs nor the drivers of individual [ APCs ] were questioned ;", "- the [ military ] register concerning the use of military vehicles at the time of the abduction was not examined ;", "- the heads of the military commander ’s office , of the district department of the ORG and of the district department of the interior were not questioned with a view to finding out who had been granted permission to pass through the town of ORG on TIME when freedom of movement was restricted ;", "- the register of persons detained in the period concerned was neither seized nor examined , and the persons in charge of detention facilities were not questioned with a view to establishing the circumstances relating to the [ placement ] of abducted person in such facilities ;", "- G. , the military commander of ORG district , was not questioned , whereas from the records of questioning of [ the first applicant ] it would appear that he had claimed to have been able to influence the fate of [ his abducted relatives ] . PERSON , head of the ORG department , who had admitted his involvement in [ Mr PERSON ] PERSON ’s abduction , was not questioned either .", "The above circumstances prove that [ the first applicant ’s ] request for the [ proceedings ] to be resumed and for a more thorough and complete investigation is well - founded ... ”", "As regards case no . DATE , the court dismissed the complaint on the ground that the first applicant had not been granted victim status in those proceedings and had failed to submit to the court documents corroborating his claim to be Mr PERSON grandfather .", "Following the delivery of the judgment , on DATE the first applicant requested ORG to give him access to materials in case file no . ORG and to allow him to make copies of relevant documents . His request was refused . The first applicant complained to ORG against the refusal .", "On DATE ORG dismissed the complaint . The first applicant appealed .", "On DATE ORG of GPE dismissed his appeal . It noted that LAW provided that a victim could only inspect records pertaining to investigative actions in which he had participated . He could inspect the entire case file once the investigation had been completed . Since the investigation in case no . PERSON was still pending , the refusal of ORG to provide the applicant with access to the entire case file was lawful .", "On DATE the fourth applicant filed a complaint with ORG concerning the inaction of the investigating authorities and their failure to give her access to case file no . DATE . In her complaint she stated that Mr PERSON had been apprehended by servicemen who had arrived on APCs .", "On DATE ORG upheld her complaint . It held , in particular , that the prosecuting authorities’ refusal to allow her access to the materials in the case file was in breach of the LAW . It further noted that in the course of the investigation the first , second , third and fourth applicants , PERSON and PERSON had been questioned as witnesses . In reply to requests for information ORG district department of the ORG had stated that they had not apprehended Mr Yunadi PERSON or taken him to their LOC . Similar responses had been received from ORG district military commander ’s office , the head of military unit no . DATE , the operational - search bureau of ORG , district prosecutor ’s offices and ORG .", "DATE . The court further noted a number of flaws in the investigation no . DATE similar to those noted in its decision of CARDINAL DATE in respect of the investigation in case no . MONEY ( see paragraph CARDINAL above ) and ordered ORG to conduct a more thorough and complete investigation .", "Following the delivery of the judgment , on DATE the fourth applicant requested ORG to give her access to the materials in case no . DATE and to allow her to make copies of relevant documents .", "On DATE ORG refused the request on the ground that in accordance with LAW a victim could only inspect records pertaining to investigative actions in which he had participated .", "Despite a specific request by ORG , the Government did not submit copies of the investigation files in cases nos . ORG and DATE concerning the abduction of Mr PERSON and Mr PERSON . They submitted CARDINAL pages of case - file materials containing decisions to institute , suspend and resume the investigation and to grant victim status . The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings . At the same time , the Government suggested that a ORG delegation could have access to the “ materials of the criminal cases containing no state or military secrets ... without making copies thereof ” at the location of the preliminary investigation in GPE .", "For a summary of relevant domestic law see PERSON and PERSON GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ." ]

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

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[ "3" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms Beata NORP , a lawyer practising in GPE .", "The applicant was elected to ORG during the municipal elections of DATE and has served as a councillor since DATE . His term of office lasts DATE .", "On DATE amendments to the DATE ORG ( County ) Act , enacted in DATE , came into force . These amendments impose an obligation on local councillors to disclose information to the public concerning their financial situation and property portfolio . This is to be done through a declaration which is submitted to the president of the local council . These declarations are subsequently published in ORG , available to the general public via the Internet .", "In DATE the applicant asked the ORG to lodge a request with ORG to examine whether the provisions of LAW , as amended in DATE , were compatible with the LAW insofar as they imposed an obligation on local councillors to make detailed information available to the general public about their property and income . The applicant argued that the provisions of LAW had not previously provided for such a disclosure . He was of the opinion that this obligation was in breach with the DATE ORG . He argued that making such information publicly available would facilitate political harassment and could expose him and his family to the threat of theft or burglary . He could refuse to submit a declaration , but he would then be deprived of the DATE emoluments payable for his work as councillor . He drew the ORG ’s attention to the fact that , even in such a scenario , he would not be deprived of his office . In his view , this cast doubt on the effectiveness of the obligation to submit the impugned declaration . Insofar as declarations were designed to curb corruption , it was illogical that a failure to submit such a declaration would not result in removal from office .", "In his replies of DATE , CARDINAL DATE and CARDINAL DATE , the ORG indicated that he was in receipt of voluminous correspondence drawing attention to various aspects of the transparency obligations imposed by the DATE amendments to LAW . His correspondents argued that the scope of the obligation to make publicly available details pertaining to the financial situation of various local politicians and officials was too extensive and breached the right to respect for private and family life . In the light of the public reaction to those amendments , the ORG was considering whether to ask ORG to examine their compatibility with LAW .", "Eventually , however , after analysing various provisions of the LAW , the ORG complained to ORG only about those amendments to LAW which imposed a wide - ranging obligation on certain local politicians to submit declarations about various aspects of the business activities of their close and extended families , in particular insofar as these activities concerned companies owned or co - owned by local municipalities .", "In a judgment of DATE , ORG found certain of those provisions constitutional and declared others incompatible with LAW . However , it did not examine the obligation complained of in the present case , but only dealt with those obligations under LAW which related to the business activities of local LOC families .", "The applicant does not wish to disclose details about his income and property as required by LAW as amended . He has not submitted a declaration as required . Consequently , he has received no emoluments for his work as a councillor since DATE , these emoluments amounting to MONEY ( ORG ) per month .", "LAW reads :", "Every citizen shall have the right to obtain information on the activities of public bodies and of persons discharging public functions . This right shall also include the receipt of information on the activities of self - governing economic or professional bodies and other persons or organisational units in connection with fields in which they perform public duties and manage communal assets or property belonging to ORG .", "The right to obtain information shall guarantee access to documents and entry to the sittings of collective public bodies which have been formed by universal suffrage and shall include the opportunity to make sound and visual recordings .", "Limitations on the rights referred to in DATE and CARDINAL above may be imposed by statute solely in order to protect the freedoms and rights of other persons and economic subjects , public order , security or important economic interests of the ORG .", "The procedure for the provision of information referred to in DATE and CARDINAL above shall be specified by statute and , as regards the PERSON and the ORG , by their rules of procedure .", "Article CARDINAL of the LAW provides :", "Everyone shall have the right to legal protection of his private and family life and of his honour and good reputation and the right to make decisions about his personal life .", "Article CARDINAL § CARDINAL of the LAW provides as follows :", "“ In accordance with principles to be specified by statute , everyone whose constitutional freedoms or rights have been infringed shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or other normative act on the basis of which a court or an administrative authority has issued a final decision concerning his freedoms or rights or on his obligations as set out in the LAW . ”", "By a judgment of DATE ORG examined a request to examine the compatibility with LAW ( which was later replaced by the legislation complained of in the present case ) .", "In this request the complainants argued that the provisions of LAW insofar as they prevented members of executive boards of local councils and various other officials of local administration from conducting business activities on their own account were incompatible with the LAW . This was because , the complainants averred , they imposed undue restrictions on business freedom guaranteed by its LAW . It was also argued that these restrictions were in breach of the principle of equality guaranteed by its LAW .", "ORG recalled the history of legislation intended to limit the scope of business freedom of persons engaged in various bodies of local government since the first such law was adopted in DATE . It reiterated that these laws were to curb possible corruption by making it impossible for certain categories of public officials to combine their public functions with business activity .", "The ORG further considered that the provisions complained of could not be said to breach the principle of equality as guaranteed by LAW . This principle meant that all persons having the same legally relevant characteristics were to be treated equally , without differences to their advantage or disadvantage . However , this principle accepted that different classes or groups of persons be treated differently ( GPE ) .", "In this connection , it reiterated that the case - law of the ORG regarding restrictions of business activity of persons holding public functions was already established in that it had repeatedly held that such persons had to expect that such restrictions would be imposed on them . It recalled that these restrictions were meant to prevent public officials from engaging in situations and dilemmas of such a nature as to be capable of not only casting doubt on their personal honesty and integrity , but also of undermining authority of the ORG ’s bodies and of weakening the trust of the electorate and public opinion in their functioning ( W CARDINAL/CARDINAL ) .", "The ORG referred to its judgment given in DATE in which it had stated that the legislature was empowered to impose various restrictions on local councillors in respect of their professional activities , provided that such limitations would be reasonably linked to public interest they were intended to serve and that the scope of such limitations remained proportionate to the importance of such public interest ( K CARDINAL/CARDINAL ) .", "As regards the temporal scope of application of LAW , the ORG noted the ORG argument that the introduction of that Act adversely the legal situation of the public officials concerned in that it had extended during their mandate the scope of limitations applicable to them . The ORG considered that the prohibition on laws which harmed the position of individuals applied only to existing legal relationships within the area of civil , social insurance or administrative law . It could not be interpreted in such a way as to constitute a total ban on the introduction of new public law regulations which would be less advantageous for persons carrying out public functions during their mandate . It was of the view that such persons could not be considered as having any ‘ acquired rights’ in respect of the conditions of their mandate that could be compared to such rights within the meaning of this term for the purposes of civil or social insurance law .", "Under LAW ( c ) LAW of CARDINAL DATE as amended in DATE , local councillors , members of local government executive boards , executive secretaries to county councils and members of governing boards of legal entities with legal personality , such as companies owned or co - owned by local municipalities , are to submit declarations on their financial situation and property portfolio , hereinafter referred to as “ declarations ” .", "The declarations must cover their personal property and assets owned as marital property , and must list the following assets : savings and other liquid assets , all immovable property and shares and actions in public companies owned by both public - law and private - law persons . The declarations must also include information on property purchased by way of tender from any public - law entities and information about businesses owned or run by the persons obliged to submit declarations .", "The obligation to submit a declaration also covers information on income earned in the context of paid employment or any other income - generating professional or business activity . Further , information on all movable property exceeding PLN CARDINAL,CARDINAL in value is to be included . Information on all loans of CARDINAL taken out by the individual concerned and the conditions under which these loans were granted is to be disclosed .", "Pursuant to LAW , the declaration must be submitted within DATE of the date on which a councillor makes a solemn oath to perform his or her duties honourably . ORG declarations are to be submitted to the President of ORG .", "Declarations are to be submitted for DATE until DATE of DATE at the latest , and also DATE prior to the end of a councillor ’s term of office .", "The declaration is to be accompanied by a copy of the DATE income - tax declaration for the relevant DATE .", "Declarations are to be submitted on a standardised form , provided in the LAW issued by the Prime Minister on DATE .", "The president of the local council is empowered to examine the declaration submitted by councillors and is obliged to transmit a copy to the local tax office .", "A copy of the declaration is to be kept for DATE in the local council ’s public records .", "Under LAW ( c ) § CARDINAL , the local tax office is empowered to examine whether the declaration is compatible with the councillor ’s income - tax declaration for the relevant year . Where doubts arise as to its veracity , the president of the local council or the tax office may request the local tax inspectorate to institute a tax audit procedure in respect of the councillor .", "Pursuant to LAW , the president of the council is obliged to submit a report to the council by DATE , listing those councillors who have failed to submit declarations . This report should include information about any irregularities discerned in the declarations and about any measures taken in connection with these irregularities , such as those provided for in LAW ) § CARDINAL of the Act .", "Under LAW ( d ) , the information contained in the declaration is to be made public , with the exception of ORG home addresses and the address of other real estate that they own .", "Pursuant to LAW , a councillor who fails to submit a declaration will not be paid his or her DATE emoluments until such time as a declaration is duly submitted .", "Electronic copies of all submitted declarations are accessible to the general public through ORG , as provided for in the DATE LAW .", "Pursuant to LAW , a Public Information Bulletin has been created . It is an official publication and is accessible to the general public via the Internet . ORG is responsible for its creation and functioning . He or she is also responsible for ensuring that all public - law entities which are legally so obliged submit any information which is to be made public and that the ORG ’s home - page contains links enabling visitors to access all such information ." ]

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[ "The applicant was born in DATE and lives in PERSON . He is a businessman .", "On DATE the applicant requested ORG to bring criminal proceedings against ORG , a businessman from GPE whom he suspected of having committed fraud . The request was examined by various authorities but no criminal proceedings were brought .", "On DATE the applicant complained to the police that CARDINAL unknown men had left a message at the entrance to his flat saying that they would break his hands if he did not “ abstain from writing ” . On DATE the applicant complained to the police that a shot had been fired through a window in his flat . He claimed that he was being harassed because he had written articles about several former members of ORG . Subsequently the applicant was informed that the police could not identify the perpetrators .", "On DATE the applicant complained to the head of ORG that , following a change of the central switchboard , telephone conversations at his agency were frequently interrupted . The applicant stated that there was a noise on the telephone prior to the interruption of a call which was similar to that which had formerly occurred when telephone calls were tapped by the NORP secret police . He requested that the fault be remedied .", "On DATE a police investigator brought criminal proceedings against the applicant on the ground that he was suspected of having stolen goods from NORP The decision was based on a written communication by the district prosecutor in ORG ) .", "On DATE the applicant asked ORG to discontinue the criminal proceedings against him . In his letter the applicant complained , without providing further details , that the police investigator dealing with his case had obtained information on him by unlawfully tapping his telephone . He requested that criminal proceedings be brought against a person or persons unknown for illegal telephone tapping .", "On DATE the applicant addressed a letter to P. , the ORG I district prosecutor . The letter contained , inter alia , the following statements :", "“ Since you have not succeeded , comrade prosecutor , in attaining your aims in CARDINAL area , you continue energetically , in accordance with the practice of the [ former ] ORG agents , to fabricate another case [ against the applicant ] as you have learned to do under the so - called infallible socialist law . On this occasion I can assure you , however , that I have not bowed to the high representatives of the former political system and , in particular , the [ former ] ORG agents who paid at least as much attention to my person as you do now . I do not intend DATE to let myself be intimidated , especially not by individuals such as yourself , a person with a dubious past , not to speak of [ your ] other qualities ...", "It is not only my earlier experience of managing a detective agency which makes it difficult for me to associate you with objectivity , professionalism and respect for the law . I would therefore like to remind you on this occasion that you are also bound by the law despite the fact that you probably consider yourself ... to be an almighty lord of the NORP [ LOC ] and the GPE [ LOC ] and , as such , beyond anyone ’s reach as you are , for the time being , under the protective hand of comrade [ M. ] . Abuse of the law may have very unpleasant consequences for you . For the time being , I will only mention some of the abuses which do not call for any comments . ”", "In the letter the applicant further stated that the addressee was responsible for the dismissal of his criminal complaint against ORG and the institution of criminal proceedings against him in DATE , and that he had unlawfully ordered the tapping of his telephone .", "P. submitted the letter to his hierarchical superior , ORG . In a letter of CARDINAL DATE the latter informed the applicant that it had not been established that PERSON had given an order to tap his telephone or that he had otherwise acted unlawfully .", "In the meantime , on DATE , the applicant complained to ORG PERSON had committed an offence in that he had misused his authority . The letter read , inter alia , as follows :", "“ [ P. ] accepted the request of [ ORG ’s lawyer ] ... that no criminal proceedings would be brought against [ H. ] in GPE notwithstanding that sufficient evidence existed to do so ... Of course , money paid by [ H. ] with a view to covering up his fraudulent activity also played a role in the matter . It would therefore be worth examining in this context whether [ an offence of bribery was not committed ] ...", "Following a ... threat ... by ... an investigator from ORG in the context of the case of [ H. ] ... I went to the aforesaid office on DATE . After I had rejected an ‘ agreement’ which was proposed to me , [ the investigator ] , a former ORG agent , accused me of having stolen [ goods from H. ] in DATE . Thus [ P. ] has been unwilling to bring proceedings against [ H. ] since DATE , and has arranged , through a police investigator who can easily be blackmailed , for proceedings to be brought against me in revenge for the justified complaints I had lodged against him . [ P. ] did so contrary to [ the relevant provisions of LAW ] because so far ... there is no evidence before [ the relevant authorities ] from which to conclude with sufficient certainty that I stole anything from [ H. ] Subsequently I realised that my telephone , which was also used by my detective agency , had been tapped contrary to LAW . ”", "On a petition by ORG , ORG agreed that criminal proceedings be brought against the applicant for insulting a public prosecutor . The case was transferred to a public prosecutor in Liptovský Mikuláš . On DATE the applicant was charged with insulting a public official in his letters of DATE and DATE mentioned above .", "In a letter of CARDINAL DATE addressed to ORG , the applicant expressed the view that the purpose of the harassment to which he was subjected in DATE and DATE had been to make him withdraw his criminal complaint against PERSON He requested that an investigation be opened .", "In DATE the newspaper ORG noviny published an article by a third person describing the applicant ’s case in detail . It was entitled “ How the Red Plague operates in LOC ” and contained quotations from the applicant ’s letters . The relevant parts read as follows :", "“ ... It is on this basis that the district prosecutor ’s office in PERSON started a prosecution against [ the applicant ] on DATE . In order to give the reader an idea of what is possible in [ GPE ] , I will quote the text which , according to public prosecutor [ L. ] , constitutes a criminal offence .", "In his message of DATE addressed to ORG in GPE , [ the applicant ] stated in respect of [ public prosecutor P. ] that in the criminal case of [ H. ] he had deliberately acted wrongly so that ‘ he could satisfy his friend [ M. ] from PERSON , the former President of ORG whom ORG of GPE had identified as a key official and who is now [ H. ] ’s lawyer , that no criminal proceedings would be brought against [ H. ] in GPE notwithstanding that sufficient evidence existed to do so ... Of course , money paid by [ H. ] with a view to covering up his fraudulent activity also played a role in the matter . It would therefore be worth examining in this context whether the facts do not fall under Articles CARDINAL and CARDINAL of the Criminal Code [ which govern the offence of bribery]’ .", "In the same document [ the applicant ] stated : ‘ Subsequently I realised that my telephone , which was also used by my detective agency , had been tapped contrary to LAW", "In a letter dated DATE and addressed to public prosecutor [ P. ] , [ the applicant ] stated among other things : ‘ Since you have not succeeded , comrade prosecutor , in attaining your aims in CARDINAL area , you continue energetically , in accordance with the practice of the [ former ] ORG agents , to fabricate another case as you have learned to do under the so - called infallible socialist law . On this occasion I can assure you , however , that I have not bowed to the high representatives of the former political system and , in particular , the [ former ] ORG agents who paid at least as much attention to my person as you do now . I do not intend DATE to let myself be intimidated , especially not by individuals such as yourself , a person with a dubious past , not to speak of [ your ] other qualities ... ’", "In the same letter [ the applicant ] went on : ‘ It is not only my earlier experience of managing a detective agency which makes it difficult for me to associate you with objectivity , professionalism and respect for the law . I would therefore like to remind you on this occasion that you are also bound by the law despite the fact that you probably consider yourself to be an almighty lord of the NORP [ LOC ] and the GPE [ LOC ] and , as such , beyond anyone ’s reach since you are , for the time being , under the protective hand of comrade [ M. ] . Abuse of the law may have very unpleasant consequences for you . For the time being , I will only mention some of the abuses which do not call for any comments.’", "Thus , on the basis of these statements , prosecutor [ L. ] , on the instructions of [ the General Prosecutor ] , started a prosecution against [ the applicant ] . Every decent person must be astonished to learn of such stupid behaviour . ”", "On DATE the applicant stated before the prosecutor in PERSON that he had intended to criticise PERSON for his wrongful actions but not to insult him . He further informed the public prosecutor dealing with the case that he had not written any newspaper article on the issue , but had merely provided the author with the relevant documents .", "On DATE ORG submitted a document to the district prosecutor ’s office in PERSON indicating , with reference to the relevant register , that the PERSON I district prosecutor had not ordered the tapping of the applicant ’s telephone DATE .", "On DATE the FAC district prosecutor indicted the applicant before LOC on the charge of insulting a public official . On DATE FAC transferred the case to ORG for reasons of jurisdiction . As the public prosecutor affected by the applicant ’s statements was responsible for the same district , ORG , on DATE , transferred the case to ORG .", "On DATE ORG issued a penal order in which it convicted the applicant of attacking a public official , on the ground that , in his letters of DATE and DATE , he had insulted a public prosecutor . The court sentenced the applicant to CARDINAL months’ imprisonment suspended for DATE .", "The applicant appealed against the order . The case was assigned to another judge . On DATE the ORG convicted the applicant under LAW of LAW of insulting a public official and sentenced him to CARDINAL months’ imprisonment suspended for DATE . The judgment stated , in particular , that in his letters the applicant had alleged that the public prosecutor had deliberately acted improperly as regards the applicant ’s request of DATE for criminal proceedings to be brought against ORG ; that the public prosecutor had done so at the request of the lawyer representing PERSON ; and that ORG had paid a sum of money for this purpose . ORG also noted that the applicant had accused P. of having been unwilling to uphold his criminal complaint , of having ordered criminal proceedings to be brought against him and of having his telephone illegally tapped .", "The judgment further stated that the applicant had not shown that the public prosecutor in question had failed to act in accordance with the law . The court therefore concluded that the applicant ’s statements were defamatory and grossly offensive .", "ORG did not accept the applicant ’s defence that the sole purpose of his letters had been to have his request for criminal proceedings to be brought against PERSON dealt with appropriately . The court noted that , besides the CARDINAL letters in question , the applicant had sent a considerable number of other complaints concerning the same issue which , however , had contained no defamatory or offensive remarks . Both ORG and ORG had dealt with the applicant ’s complaints and had dismissed them as being unsubstantiated .", "The applicant appealed , both personally and through his lawyer . He alleged that the purpose of his remarks had been to prevent further delays in the proceedings concerning his criminal complaint of DATE , and not to offend P. He further claimed that the statements in question were not offensive and did not constitute an offence .", "On DATE ORG dismissed the appeal after hearing evidence from the applicant and asking him to substantiate his allegations .", "ORG found that in the statements made in his letters of DATE and DATE the applicant had grossly insulted a public prosecutor without justification . In particular , it stated that the applicant had failed to substantiate his allegation that ORG had paid a sum of money in order to prevent criminal proceedings being brought against him and reiterated that ORG had not established that P. had acted unlawfully in this or any other respect .", "ORG further considered defamatory and grossly offensive the applicant ’s statements that the public prosecutor had acted in accordance with the practice of the former ORG agents , had a dubious past , not to speak of his other qualities , and possibly considered himself to be an almighty lord of LOC and LOC who was “ beyond anyone ’s reach ” .", "In ORG view , the applicant had failed to show that he had a justified reason to make such statements . The court did not accept the applicant ’s argument that he had doubts about the past and qualities of the public prosecutor because the latter had studied socialist law , had failed to take appropriate action on the applicant ’s criminal complaint of DATE , and initiated criminal proceedings against him .", "In its judgment ORG pointed out that the applicant had not been hindered in seeking redress before the appropriate authorities for the actions of PERSON which he considered inappropriate or unlawful . It held , however , that by making defamatory and offensive remarks the applicant had committed an attack against a public official within the meaning of LAW of LAW . ORG upheld the sentence which ORG had imposed on the applicant .", "On DATE ORG revoked the trading licence under which the applicant had been authorised , inter alia , to run a detective agency , on the ground that he had been convicted of an offence . On DATE ORG dismissed the applicant ’s appeal against this decision .", "On DATE the ORG quashed the administrative decisions concerning the revocation of the applicant ’s trading licence and remitted the case to ORG . In its judgment ORG noted that both administrative authorities , deciding at lower instances , had failed to establish any relevant legal grounds for their decisions .", "On DATE ORG issued a decision noting that the applicant had not committed any offence during the probationary period and stating that he was to be considered as not having been convicted .", "As from DATE the relevant law was amended in that persons wishing to run private security agencies were required to obtain the approval of the police headquarters . The applicant did not ask for such approval and returned his trading licence of DATE , under which he had been allowed to run a detective agency , to ORG on DATE . In the meantime , on DATE , he registered with the relevant authorities as running a different business . He attached a certificate indicating that his criminal record was clean and received a new trading licence on DATE .", "Article CARDINAL § CARDINAL of LAW provides that a person who utters grossly offensive or defamatory remarks in respect of a public official relating to that official ’s exercise of his or her powers shall be punished by DATE imprisonment or a fine ." ]

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[ "The applicants are NORP citizens , born in DATE and DATE respectively and resident in PERSON . Before the ORG they are represented by Mr. Christian Holmsten , a lawyer and member of the Bar practising in GPE . The respondent Government are represented by Mr PERSON , Director ORG , and Mr PERSON , Director , both of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicants are married and the parents of PERSON , born in DATE , and PERSON , born in DATE . The applicant mother has a third child , PERSON , born in DATE , who also lived with the applicants at the beginning of the events of relevance to the application .", "On DATE the first applicant was apparently informally told by a social welfare official that public care orders regarding the children were being prepared . On DATE ORG ’s father was formally heard in respect of the proposed public care of her . At a meeting on DATE the applicants were formally notified that ORG ( sosiaalijaosto , socialsektionen ) of ORG ( sosiaalilautakunta , socialnämnden ) of GPE would , on DATE , consider a proposal that the children should be placed in public care . The applicants opposed the proposal . They allegedly obtained the material which was to form the basis for the proposal only on DATE , CARDINAL DATE . According to ORG , the material was at the applicants’ disposal in ORG from DATE , CARDINAL DATE . The material contained various expert opinions and affidavits and totalled CARDINAL pages .", "In their submissions of CARDINAL DATE the applicants , represented by their current counsel , opposed the proposed public care , invoking , inter alia , an opinion submitted by PERSON , a general practitioner , according to whom the children were normally developed physically . A further opinion of DATE was issued by PERSON , Acting Head of ORG at ORG of GPE , who had been examining PERSON during DATE . PERSON stated in essence that the delay in PERSON 's mental development was being successfully followed up by various support measures . This opinion was submitted to the members of ORG on DATE .", "Having heard the applicants and the leading social welfare official at its meeting on DATE , ORG placed the children in public care , considering that the applicants were incapable of ensuring their basic care and education , that their home was lacking incentives and that the applicants had shown indifference in regard to the children 's overall well - being . The support measures provided by ORG had proved to be insufficient . The children were to be placed in a local children ’s home pending their placement in a foster family . According to the care orders , the public care was expected to last until the children had reached the age of majority . The children ’s right to maintain regular contact with their parents and with each other would be ensured . They could receive visits in the children ’s home during visiting TIME . The Social Section relied on section CARDINAL of LAW ( lastensuojelulaki , barnskyddslag DATE ) . The children were fetched from the applicants ' home on DATE TIME", "On DATE the applicants appealed to ORG ( lääninoikeus , länsrätten ) of GPE , requesting an oral hearing for the purpose of hearing PERSON and ORG as experts concerning the children ’s health as well as various other persons as witnesses in regard to the conditions in the applicants ' home . The applicants considered it unfair that the care orders had been based on the written reports of various public officials and experts consulted by the social authorities without the applicants’ having been able to question them orally . The applicants conceded that they had had financial problems but contended that they had always provided their children with satisfactory care .", "In DATE ORG responded to the ORG appeals and the applicants submitted a rejoinder alleging that the children had expressed a strong wish to return home . On DATE ORG rejected the appeals , having found an oral hearing unnecessary . ORG reasoning read in extenso as follows :", "( translation from NORP )", "“ According to the evidence transpiring from the documentation on file , the shortcomings in the children ’s care and the other conditions in their home seriously jeopardise the children ’s development . The open - care assistance has proved to be insufficient and substitute care has been deemed to be in the children ’s best interests . ORG has therefore been under an obligation to place [ the children ] in the care of [ the ORG ] . ”", "ORG relied on LAW , subsection CARDINAL , of LAW and on sections CARDINAL of LAW ( lastensuojeluasetus , barnskyddsförordning DATE ) .", "The applicants appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , requesting that the case be referred back to ORG for an oral hearing of experts and witnesses . The applicants again argued that they had only had DATE at their disposal for preparing for the decisive meeting on DATE . In addition , the preparation of their subsequent appeals had been hampered by the impossibility of having the children , then already removed from the applicants’ home , examined by experts of the applicants’ choosing .", "On DATE ORG rejected the applicants ' request and appeal as a whole by upholding the lower court ’s decision .", "According to the information available to the ORG , PERSON is still staying at a children 's home in GPE . S. and PERSON are staying in foster families at Jalasjärvi , QUANTITY from GPE . According to the applicants , they met PERSON in the children ’s home once DATE but were allegedly able to meet PERSON and ORG only in DATE", "DATE and DATE . During DATE the applicants and the children met twice .", "The relevant legislation is outlined in the ORG ’s judgment in the case of PERSON GPE ( no . CARDINAL , CARDINAL , § § DATE ) . Those provisions of particular relevance to the present case are described below .", "According to section CARDINAL of LAW , ORG shall take a child into care and provide substitute care for him or her if ( a ) the child ’s health or development is seriously endangered by lack of care or other conditions at home , or if the child seriously endangers his or her health and development by abuse of intoxicants , by committing an illegal act other than a minor offence , or by any other comparable behaviour , ( b ) the measures of assistance in open care are not appropriate or have proved to be inadequate ; and ( c ) foster care is considered to be in the best interests of the child . PERSON care shall be provided without delay where it is needed and is in the best interests of the child ( section CARDINAL , subsection CARDINAL ) .", "If a child is in imminent danger or otherwise in need of an immediate care order and foster care , ORG may take him or her into care without submitting the decision to ORG for prior approval ( section CARDINAL ) . An emergency care order shall expire within DATE of the decision , unless referred for reconsideration under LAW of LAW . An ordinary care order pursuant to section CARDINAL must be issued within DATE , or on special grounds within DATE , of the emergency order . Both ordinary and emergency care orders may be appealed to the administrative courts .", "The child ’s custodians , biological parents and de facto carers shall be heard in respect of a proposed public care order and be notified of the decision taken ( section CARDINAL , subsection CARDINAL , of LAW , as amended by Act no . GPE ) . The hearing procedure is governed by LAW ( hallintomenettelylaki , lag om förvaltningsförfarande CARDINAL/CARDINAL ) . Under LAW of the said LAW a party shall be afforded the opportunity to reply to any claims put forward by others as well as to any evidence that may affect a decision to be taken . LAW does not lay down any minimum period of time which a party shall have at his or her disposal for preparing such a reply . A matter may be decided without a preceding hearing of a party inter alia if such a hearing would be manifestly unnecessary , would jeopardise the purpose of the decision or if the decision can not be postponed . LAW requires that the competent authority duly investigate the matter before it and ensure the equality of the parties .", "According to section CARDINAL of LAW ( sosiaalihuoltolaki , socialvårdslag PERSON ) , a decision made by ORG is enforceable regardless of an appeal ( a ) if the decision requires immediate implementation ; ( b ) if , for reasons due to the arrangement of social welfare , the enforcement of the decision can not be delayed ; or ( c ) when ORG has ordered the decision to be enforced at once .", "According to section CARDINAL of LAW , a child who is being cared for outside his or her original home shall be ensured those important , continuous and secure human relations which are important for his or her development . The child is entitled to meet his or her parents and other close persons and to keep in touch with them ( subsection CARDINAL ) . ORG shall support and facilitate the child ’s contacts with his or her parents and other close persons ( subsection CARDINAL ) .", "According to section CARDINAL of LAW and section CARDINAL of LAW , ORG or the director of a children ’s home may restrict the right of access of a child in foster care to its parents or other persons close to him or her if ( a ) such access clearly endangers the development or safety of the child ; or if ( b ) such a restriction is necessary for the safety or security of the parents , or the children or staff in the children ’s home . The restriction shall be limited in time . It shall mention the persons whose rights are being restricted , the kind of contacts concerned by the restriction and the extent of the restriction .", "The care plan to be drawn up in respect of a child in public care shall mention ( a ) the purpose and objectives of the placement ; ( b ) what kind of special support will be organised for the child , for the persons in charge of the child ’s care and upbringing and for the child ’s parents ; ( c ) how the child ’s right of access to its parents and other persons close to the child will be organised ; and ( d ) how after - care is going to be organised . According to section CARDINAL of LAW , the care plan shall be elaborated in co - operation with those involved ." ]

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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 J. Benton , a Member of ORG for a constituency in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant ’s wife died on DATE , leaving CARDINAL dependant children . His claim for widows’ benefits was made on DATE and was rejected on DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . This decision was confirmed by an appeal tribunal on DATE . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .", "The applicant was not in receipt of child benefit at the time of his claim .", "The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE ." ]

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[ "The applicant was born in DATE and lives in GPE ( in GPE ) .", "The facts of the case , as presented by the parties , may be summarised as follows .", "The applicant arrived in GPE on DATE as an asylum seeker .", "On DATE she was placed in an accommodation centre for asylum seekers in the GPE of GPE .", "On DATE she was moved to the “ CARDINAL ” accommodation centre in GPE ( Aargau ) .", "On DATE the applicant gave birth to a stillborn baby , the father of whom was a NORP national . The autopsy established that the fœtus had died DATE before delivery , at DATE and DATE . At the request of the midwife , the applicant , who was in a state of shock , was taken from the “ LOC ” accommodation centre to the hospital in the GPE of GPE . When asked by the midwife , both the applicant and the baby ’s father said that they did not want to see the baby ’s body .", "On DATE the social worker ( PERSON ) and the registrar of births , marriages and deaths ( PERSON ) of the municipality of NORP were informed of the child ’s birth . Believing that it was not compulsory in the case of a child stillborn at the start of DATE of pregnancy to be buried with an attendant ceremony , they ordered a burial without a ceremony , in the absence of the applicant . They based their decision in particular on the fact that the parents had not expressed a wish to see the body before the autopsy and took the view that , given her mental state , the applicant was not fit to attend the burial .", "On DATE , after having been placed in a wooden coffin by a firm of undertakers , the child ’s body , on instructions from the municipality social worker , was carried in a delivery van to the cemetery of the municipality of Buchs for burial in a communal grave for stillborn babies ( GPE für GPE ) .", "It appears that the applicant left the hospital that DATE ( see the decisions of the GPE of ORG of DATE , paragraph CARDINAL below ) .", "On DATE a member of the psychiatric services department took the applicant to the cemetery to lay flowers .", "According to the Government , the applicant was informed on DATE that it would be possible to organise a funeral for her child at DATE . In her statements of DATE ( see paragraph CARDINAL below ) the applicant disputed that assertion .", "On DATE she went to the cemetery and , accompanied by the priest , placed various stones and laid flowers at the site at which her child had been buried .", "On DATE the applicant lodged a criminal complaint against persons unknown at the district office ( PERSON ) of ORG and joined the proceedings as a civil party . Criminal proceedings were brought against the social worker and the registrar of births , marriages and deaths of the municipality of PERSON for misuse of official authority , disturbing the repose of the dead and , in the alternative , removal of property within the meaning of LAW . The applicant submitted that her child ’s body had been unlawfully removed from her and that it had been carried in an inappropriate vehicle without the authorisation required for this kind of transport . In this context , she complained of a violation of her personal freedom guaranteed by LAW and , in her submission , protecting the feelings of an individual vis - à - vis a deceased family member ( see paragraph CARDINAL below ) .", "On DATE the applicant moved to GPE where her partner was living .", "On DATE the applicant and her partner were questioned by the GPE cantonal police concerning the birth of their child and the circumstances that had surrounded it . Extracts of the interview with the applicant are reproduced below :", "“ Question ( hereafter : “ Q ” ) CARDINAL : Were you informed of the various types of funeral ( burial , cremation or other ) for stillborn babies ?", "Reply ( hereafter : “ R ” ) CARDINAL : The midwife , and then Dr R , asked me what I wanted to do with the body of my child .", "Q CARDINAL : What type of funeral did you choose ?", "R CARDINAL : I chose a normal burial with a ceremony .", "Q CARDINAL : Did anyone mention to you that you could see your child ’s body ?", "R CARDINAL : The midwife offered to let me see the child .", "Q CARDINAL : Did you see your child ’s body ?", "R CARDINAL : I was in shock and I declined because I did n’t feel up to seeing my dead child .", "...", "Q CARDINAL : Did the hospital staff give you any guidance on the subject of funerals ?", "R CARDINAL : Yes . The formalities were carried out by C. [ the firm of undertakers ] . I just was n’t told the date .", "Q CARDINAL : Were you informed of the funeral by GPE of births , marriages and deaths ?", "R CARDINAL : No .", "Q CARDINAL : Were you informed of the place , date and time of the burial ?", "R CARDINAL : No .", "Q CARDINAL : If so , by whom ?", "R CARDINAL : ---", "Q CARDINAL : If not , did you ask the child ’s father or any other person , in particular PERSON ( the director of the LOC accommodation centre ) for this information ?", "R CARDINAL : I had a visit from Dr H on the following DATE , unless I am mistaken , at TIME She told me that my baby had been buried that very day at TIME I was very angry that I had not been present . She told me she was n’t familiar with the system .", "Q CARDINAL : Did you feel up to attending your child ’s funeral ?", "R CARDINAL : I was preparing myself because to convince myself that he had died , I had to see him placed in the ground .", "Q CARDINAL : Why did n’t you attend the burial ?", "R CARDINAL : I did n’t get the chance .", "...", "Q CARDINAL : Did the hospital staff suggest that you attend the funeral accompanied by a nurse ?", "R CARDINAL : No . No such suggestion was made to me .", "Q CARDINAL : Have you visited your child ’s grave and with whom ?", "R CARDINAL : On DATE , DATE , I met PERSON , a social worker . He told me that I was not entitled to know where by baby was . I told him that even though I was an asylum seeker , I was first and foremost a mother and that I had the right to see my son ’s grave .", "As he refused to tell me anything , I went to the police where I spoke to PERSON told me that she was not able to deal with this kind of problem . I insisted and after she had obtained some information , she told me that the “ municipality ” had made the decision .", "I then contacted the priest of ORG in ORG and a pastoral assistant . They were astonished that I had not obtained satisfaction . They tried to obtain information but were unsuccessful .", "Q CARDINAL : Do you feel that you have suffered a loss as a result of the lack of information provided to you concerning your child ’s burial ?", "R DATE : A huge loss . I experienced the shock of losing my child and on top of that , I do n’t know where he is buried .", "Q CARDINAL : What type of loss have you suffered ?", "R CARDINAL : I feel as though I have not been respected as a mother . I was kept out at every step .", "Q CARDINAL : Would you have attended the burial if you had known the time and place ?", "R CARDINAL : Yes .", "Q CARDINAL : Were you informed that it was still possible to have a private funeral ?", "R CARDINAL : No .", "... ”", "The following are extracts of the interview with the applicant ’s partner :", "“ Q CARDINAL : Were you informed of the various types of funeral ( burial , cremation or other ) ?", "R CARDINAL : The midwife asked me what kind of funeral I wanted for the child . I told her that as a NORP , I wanted a burial ( burial and ceremony ) . She asked me to contact a company called C.", "...", "Q CARDINAL : Were you told that you could see your dead child ?", "R CARDINAL : Yes , the midwife suggested it to me .", "Q CARDINAL : Did you see your dead child ?", "R CARDINAL : No , I was n’t up to seeing him . I did however see some photographs of the baby at the cantonal hospital .", "...", "Q CARDINAL : Did you feel up to attending a burial ?", "R CARDINAL : Yes", "...", "Q CARDINAL : Did you visit your child ’s grave at the cemetery and who went with you ?", "R CARDINAL : I went with my girlfriend to the LOC “ unknown persons ” cemetery on DATE . As far as I ’m concerned , it ’s not a cemetery but a public park . There is no cross to indicate that it is a cemetery . There are CARDINAL statues and a few stones with names on them . According to the information provided by the NORP social services department , my child is buried at the edge of the trees . There is no proof .", "Q CARDINAL : Do you feel that you have suffered a loss as a result of the lack of information provided to you concerning your child ’s burial ?", "R CARDINAL : Yes I have suffered a loss . After all , the dead baby was my son .", "Q CARDINAL : What kind of loss ?", "R CARDINAL : An emotional and human loss .", "Q CARDINAL : Would you have attended the funeral if you had been aware of the date and place ?", "R CARDINAL : Yes , absolutely .", "Q CARDINAL : Were you told that it was possible to hold a funeral ceremony at a later date ?", "R CARDINAL : I was given no such information .", "... ”", "On DATE , on the basis of the final reports from the NORP district office ( PERSON ) dated DATE , the GPE of GPE public prosecutor ’s office issued CARDINAL orders discontinuing the proceedings against the CARDINAL defendants . With regard to the offence of disturbing the repose of the dead , the public prosecutor ’s office considered that CARDINAL of the constituent elements of the offence – the mens rea of the defendants – had not been established . With regard to the inappropriate transport of the child ’s body , the public prosecutor ’s office acknowledged that the municipality ’s registrar of births , marriages and deaths had made a mistake of law . The accused were however ordered to pay some of the costs of the proceedings .", "The applicant lodged CARDINAL appeals against the orders of CARDINAL August DATE before ORG ) of GPE . She argued that the CARDINAL accused had disturbed the repose of the dead through “ recklessness ” ( PERSON ) and that they should therefore be held criminally liable . In the context of the appeal concerning the registrar of births , marriages and deaths , the applicant complained more specifically of a violation of her personal freedom and the right to a decent burial , as individual rights protected by LAW , due in particular to the fact that she had not been invited to attend the burial of her child . Lastly , as regards the transport of the child , the applicant challenged the contentions of the public prosecutor ’s office , which had acknowledged a mistake of law .", "In CARDINAL judgments of DATE ORG declared the appeals inadmissible . With regard to the offence of disturbing the repose of the dead , it considered that the constituent elements of the offence had not been made out in that case , but considered , nevertheless , that by ordering the child to be buried without a ceremony , the CARDINAL accused had been in breach of the relevant legislation . Indeed , both LAW , paragraph CARDINAL , of the order concerning funeral services in the GPE of LOC and LAW , paragraph CARDINAL , of the regulations governing cemeteries and funerals in the municipality of Buchs permitted burial DATE after DATE of the birth of the stillborn child . Furthermore , paragraph CARDINAL of Article CARDINAL of the regulations governing cemeteries and funerals in the municipality of Buchs made provision for a ceremony to be organised ( see paragraph CARDINAL below ) . ORG therefore considered that there had been a prima facie violation of the applicant ’s right to hold a ceremony . Furthermore , the applicant ’s mental and physical state would not have prevented her from attending her child ’s burial , since it was on precisely that date that she had left hospital . ORG stated , however , that it would have been possible to conduct a ceremony after the burial ( LAW , paragraph CARDINAL , of the regulations governing cemeteries and funerals in the municipality of LOC ; see paragraph CARDINAL below ) but that the applicant had made no such application .", "As regards the complaint relating to the transport of the child , ORG acknowledged that the registrar of births , marriages and deaths had acted in breach of LAW since no authorisation , as provided for in paragraph QUANTITY thereof , had been granted . It considered however that the mistake committed by the official , who had little experience in such matters , had to be put in perspective , as did the actual effects ( NORP ) of his conduct . Therefore , in accordance with the principle of discretionary prosecution , the public prosecutor ’s office had legally entitled to discontinue prosecution of the accused .", "On DATE the applicant lodged CARDINAL public - law appeals and CARDINAL applications for judicial review with ORG ( PERSON ) . As regards the offence of disturbing the repose of the dead , the applicant claimed that all the elements thereof , both objective and subjective , had been made out in the case at hand . She then submitted that her arguments concerning the right to a decent burial and the violation of personal freedom had not been properly considered by the lower courts . On that point , she asked ORG to transfer the part of her appeal concerning the right to a decent funeral to ORG , the only authority having jurisdiction in the matter . As regards the violation of her personal freedom , the applicant submitted that for the family of a deceased person , the mourning process was an essential manifestation of personality development , according to the relevant case - law of ORG . Lastly , she challenged the reasoning of the cantonal authorities concerning the inadequate transport of the child .", "In CARDINAL judgments of CARDINAL DATE ORG dismissed all CARDINAL of the applicant ’s appeals . It declared the ground based on the right to a decent funeral inadmissible and determined that her application to transfer part of her appeals to ORG was vexatious ( geradezu mutwillig ) , pointing out that a specific type of appeal to that court existed for complaints of that nature .", "Subsequently , leaving aside the matter of whether the objective elements of the offence of disturbing the repose of the dead had been met , ORG held that whatever the circumstances , mens rea on the part of the accused had not been established . Lastly , as regards the violation of personal freedom complained of by the applicant for having been prevented from completing her mourning process , and the violation of the right to a decent funeral , ORG held that these claims were well - founded , or at least could have been , but that they were not relevant in the context of the proceedings at issue , in which the only matter to be decided was whether or not the perpetrators were guilty of the acts complained of .", "Under the federal law on assistance to victims of crime , the applicant lodged a parallel application for payment of compensation for the non - pecuniary damage suffered as a result of the infringement of her personality rights .", "That application was rejected first by the social services of the GPE of GPE , then by ORG of that canton and , lastly , by ORG on DATE . While acknowledging that an offence committed by negligence could , as the case may be , fulfil the requirements of section CARDINAL(CARDINAL ) of the federal law on assistance to victims of crime even if it were not , as such , punishable as a crime because it lacked the requisite mens rea , ORG held that the offence in question in the present case , namely , misuse of authority , inherently fell outside the scope of that law .", "By a decision of DATE the Buchs municipal council authorised the child ’s body to be exhumed at the expense of the municipality . The exhumation took place on DATE and the body was transferred to the applicant ’s new home in GPE where it was buried following a NORP ceremony .", "On an unspecified date , the applicant married her partner .", "Before DATE , when LAW came into force , LAW made no specific provision for the protection of the private sphere . However , in a judgment of DATE ( ORG CARDINAL I CARDINAL ) the ORG afforded it constitutional value as an element of personal ( or individual ) freedom .", "In a judgment of DATE ( ORG CARDINAL Ia CARDINAL ) ORG acknowledged more specifically that personal freedom also encompasses the feeling of parental devotion and , accordingly , the right of parents to object to any unjustified intervention in relation to the remains of a deceased family member .", "Article CARDINAL of the new LAW protects the private sphere and is worded as follows :", "“ CARDINAL . Everyone has the right to respect for their private and family life , their correspondence and their relations established by mail and telecommunications .", "Everyone has the right to be protected against the misuse of their personal data . ”", "Article CARDINAL , paragraph CARDINAL , of the old LAW provided for an obligation on the authorities to ensure that the dead received a decent burial :", "“ The disposal of burial grounds is a concern of the civil authorities . They shall make sure that every deceased person can have a decent burial . ”", "LAW has not explicitly reproduced this provision .", "Under the old section PERSON ) , paragraph a , sub - paragraph CARDINAL , of LAW on administrative procedure in force at the material time , ORG was the only authority with jurisdiction to deal with appeals lodged against the acts of cantons concerning burial grounds . The relevant paragraph was worded as follows :", "“ An appeal to ORG shall be admissible against decisions taken at final instance at cantonal level and against legislative acts of the cantons for violation", "a. of the following provisions of LAW or the provisions corresponding to cantonal constitutions :", "...", "Article CARDINAL , paragraph CARDINAL ( of LAW ) concerning burial grounds .", "... . ”", "This provision was repealed with effect from DATE in line with the entry into force of the new LAW .", "Paragraph CARDINAL of LAW concerning disturbing the repose of the dead punishes the removal of human remains . The provision reads as follows :", "“ Any person who removes a dead body or part of a dead body or the ashes of a dead person against the will of those entitled thereto shall be liable to a custodial sentence or to a fine . ”", "Article CARDINAL of the road traffic regulations reads as follows :", "“ Motor vehicles shall not be used to transport dead bodies unless they are specifically equipped for this purpose . This shall not apply to the transport of victims from the scene of an accident .", "The cantonal authorities may allow the use of another vehicle where it can be guaranteed that the body will be transported decently and in optimum conditions of hygiene . ”", "Article CARDINAL , paragraph CARDINAL of the canton of GPE order concerning funeral services ( Verordnung über das PERSON ) is worded as follows ( unofficial translation ) :", "“ Burial must take place within a time - limit which is in line with local custom and practice and as a general rule , not less than TIME after death . ”", "Article CARDINAL , paragraph CARDINAL , of the regulations governing cemeteries and funerals ( Bestattungs- PERSON ) in the municipality of NORP establishes a similar rule . Paragraphs CARDINAL and CARDINAL thereof read as follows ( unofficial translation ) :", "“ In principle , burials shall take place on DATE following the death ... .", "After consultation with the family and the priest , the registry of births , marriages and deaths shall regulate the ceremony and burial ... ”", "Article CARDINAL , paragraph CARDINAL , of the same regulations is worded as follows ( unofficial translation ) :", "“ The burial or cremation of the coffin at the cemetery must be organised in person by the family , together with the registrar and the priest . Burial or cremation shall normally take place before the ceremony . Upon request , they may be scheduled to take place at a different time . ”" ]

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[ "The applicants are the wife and daughter of PERSON . Mr PERSON died on DATE as a result of assault and battery by CARDINAL police officers on DATE .", "At TIME on DATE the CARDINAL members of the rapid response force of ORG were training just outside town . They spotted at a distance Mr PERSON , aged sixtytwo at the time , and PERSON , who were testing a homemade metal detector . The leader of the team , lieutenant PERSON , assumed that the CARDINAL were treasurehunters and sent a party to verify his suspicion . CARDINAL police officers approached PERSON , while CARDINAL others , chief sergeants PERSON and PERSON , moved towards Mr PERSON . None of the officers was in uniform . Chief sergeants PERSON and PERSON reached Mr PERSON as he was trying to hide a hoe in nearby bushes . Surprised by the sudden appearance of the CARDINAL men , Mr PERSON did not throw the hoe away , but held it in front of him , taking a defensive posture . Chief sergeant PERSON brusquely pulled it out of his hands and threw it to a safe distance . Each of the officers then proceeded to deliver blows to PERSON PERSON 's head . They then brought him to the ground , handcuffed him , and took him to their colleagues . A car was called and Mr PERSON and Mr GPE , who had also been apprehended , were taken to the LOC of ORG . At TIME , while waiting to be questioned on the precinct LOC , Mr PERSON fainted . An ambulance was subsequently called and he was taken to hospital , where it was found that he had slipped into a coma .", "After an unsuccessful operation to evacuate a subdural haematoma , Mr PERSON died on DATE . A medical report drawn up in the course of the criminal proceedings opened pursuant to his death concluded that the cause of death was a severe cranial and cerebral trauma and internal brain haemorrhage .", "On DATE criminal proceedings were opened into the incident by ORG . The offence was provisionally characterised as murder under LAW of DATE ( “ the ORG ” ) ( see paragraph DATE below ) .", "On DATE the investigator in charge of the case questioned chief sergeants PERSON and PERSON was also questioned on the site of the incident in the presence of a medical doctor . The investigator took a number of pictures of the site .", "Most of the other witnesses were interviewed in DATE and in DATE and DATE . Several expert reports were drawn up .", "Chief sergeants PERSON and PERSON were charged and questioned again on DATE . They were released on bail .", "The CARDINAL officers who had arrested PERSON were likewise charged and questioned on DATE .", "On CARDINAL DATE the investigator in charge of the case drew up his final report , concluding that chief sergeants PERSON should be tried for wilfully inflicting grievous bodily harm on Mr PERSON and thus having negligently caused his death , contrary to LAW ( see paragraph CARDINAL below ) . He also concluded that the CARDINAL officers who had arrested PERSON should be tried for inflicting light bodily harm on him . He noted , inter alia , that all of the officers had denied any wrongdoing , in spite of the evidence to the contrary , had drawn no lessons from their act and had shown no signs of remorse . He also noted that chief sergeant PERSON and one of the officers who had assaulted Mr N.R. had been charged with inflicting light bodily harm on another person on DATE , DATE before the act in issue in the proceedings . Reflecting on the conditions which had led to the perpetration of the alleged offences , the investigator expressed the opinion that these were “ the recent increase in crime which ha[d ] led lawenforcement officers to suspect a criminal intent in all citizens until proven otherwise ; the physicality of their training at the [ police officers ' school in the town of GPE ] , where DATE , they [ we]re instructed in how to deal with violent resistance but [ we]re inadequately trained on the legal aspects of law enforcement , a practice that ha[d ] been maintained within the newlyformed rapid response force centre in GPE , as evidenced by the curriculum attached to the case file : it abound[ed ] in physical training classes and lack[ed ] any classes in legal training ; the sense of authority that the law - enforcement officers ha[d ] over the public , who [ were ] expected to show unconditional submission with no regard to their own rights and interests and with no regard to their dignity and inviolability as citizens ; the sense of impunity ; the absence of any eyewitnesses to the CARDINAL offences , committed in a forested area out of the public 's sight , and the hope that all [ would ] be covered up ” .", "In view of an amendment in DATE to LAW of DATE , whereby military courts were given jurisdiction to try police officers , on an unspecified date in DATE the case was sent to ORG . Apparently it was not processed there until DATE . The applicants complained about this inactivity to the President of the Republic , ORG and ORG . All of them forwarded the complaints to the military prosecution authorities .", "On DATE ORG sent the case to a military investigator for further processing .", "In a letter of CARDINAL DATE ORG informed the applicants that the work on the case had been held up until DATE because of staffing and backlog problems .", "In DATE the military investigator in charge of the case was transferred to another post . For this reason , on DATE the case was assigned to another military investigator .", "Having concluded his work on the case , on DATE the investigator drew up his final report , proposing that chief sergeants PERSON and PERSON be committed for trial . He noted , inter alia , that , by that date , chief sergeant PERSON was a unit commander at the riotpolice sector of ORG and that chief sergeant PERSON was a police officer at the specialised unit in charge of bank and cash transfer safety in GPE .", "On DATE ORG issued an indictment against chief sergeants ORG and PERSON It noted , inter alia , that on DATE chief sergeant PERSON had resigned from the police force and that chief sergeant PERSON was still on the force , assigned as a guard in a commercial bank . Concerning the factors which had led to the perpetration of the offence , the prosecutor observed that these were “ the defendants ' sense of impunity as officers of the special force of the [ ORG ] , their lack of respect for human dignity and the health and inviolability of citizens and their habit of treating citizens as dummies for testing their physical force and abilities , which [ were ] only needed for apprehending dangerous criminals ” .", "The trial at ORG started on an unspecified date in DATE .", "On DATE the applicants and Mr PERSON 's son brought claims for compensation against the CARDINAL police officers ( MONEY ( ORG ) for the first applicant , ORG CARDINAL for the second applicant and ORG CARDINAL for Mr PERSON 's son ) and joined the proceedings as private prosecuting parties alongside the public prosecutor .", "The court held a hearing on DATE . It heard the applicants , Mr PERSON 's son and the accused officers . It also heard the concluding argument of the parties . In his argument the public prosecutor noted that no disciplinary proceedings had taken place against chief sergeants PERSON and PERSON He requested that immediate custodial sentences , ranging CARDINAL imprisonment , be imposed . In their final statement the defendants said that they were not guilty and asked the court to acquit them .", "NORP In a judgment of DATE ORG convicted chief sergeants PERSON and PERSON of having negligently caused the death of Mr PERSON by wilfully inflicting grievous bodily harm on him , contrary to LAW . It sentenced each of them to DATE imprisonment , suspended for DATE . It also awarded the first applicant ORG CARDINAL,CARDINAL , the second applicant ORG CARDINAL,CARDINAL , and Mr PERSON 's son BGN CARDINAL,CARDINAL , payable jointly and severally by the CARDINAL officers . The court described in detail the events of DATE and held , as relevant :", "“ ... the act was committed negligently ... The case at hand concerns a complex offence , where the intention in respect of the lesser outcome is combined with negligence in respect of the more serious outcome , in other words , the offence was committed with both forms of mens rea ... The court is of the opinion that both of the defendants wilfully inflicted grievous bodily harm on [ Mr PERSON ] , which later brought about his death . The intentions must be judged through their actions . Taking into account the subjective attitude of the defendants towards their act , the court deems that their intention did not go beyond inflicting bodily harm . They merely behaved negligently in respect of the ensuing death . The objective analysis of the defendants ' conduct shows that they did not foresee the imminent death of [ Mr PERSON ] and neither wished nor envisaged a fatal outcome , their intention being solely to inflict bodily harm ...", "... The evidence in the case suggests that no persons other than the defendants were in physical contact with [ Mr PERSON ] ... All the traumatic injuries which were established were inflicted at the same time , in quick succession . The evidence shows that CARDINAL TIME on DATE in the area of LOC the defendants , ... , in their capacity as officers of ORG , arrested [ Mr PERSON ] using physical force , and in the process delivered numerous blows to his body , some of which were strong , as a result of their prior training in arrests . There is a direct and proximate causal link between the beating and [ Mr Nikolov']s traumatic injuries and the ensuing fatal outcome . In pursuing their direct aim of inflicting bodily harm on [ Mr PERSON ] , the defendants did not envisage the end result , but DATE in view of the force and the direction of the blows , they could have . It must however also be noted that , as members of the rapid response force , the defendants had acquired special skills for subduing and apprehending offenders . They were executing an order given by their immediate superior ... which included the arrest of [ Mr PERSON ] ... In this connection , the court finds that the conduct of the head of the team , lieutenant PERSON , is also reprehensible , because he was the individual who could and should have determined whether Mr PERSON and Mr GPE were offenders who had to be apprehended without fail . ...", "The causes and the conditions for the commission of the offence are the defendants ' feeling of impunity as members of the special force of ORG .", "In determining the type and the quantum of the penalty the court had regard both to the defendants ' young age and to their good character as mitigating circumstances .", "The court deemed the unlawful use of physical force as an aggravating circumstance .", "The court imposed the penalties having regard to the preponderance of mitigating circumstances ...", "Taking into account the personality of the offenders , the gravity of the offence , and the fact that the defendants have no prior convictions , and bearing in mind the aims of punishment ... the court considers that the penalties do not need to be served immediately . For this reason ... the serving of the sentences is postponed ... The main purpose of punishment in our law is general deterrence , which is achieved through the imposition of just punishment . In matching the severity of the punishment to the gravity of the offence [ the court ] must have regard to the personality of the offender as an additional factor . In the case of a suspended sentence , [ the court ] must put the emphasis on individual deterrence , namely reform of the offender . In the instant case , the court , having regard to the facts as established above , the type of mens rea involved DATE , and the low level of public threat of the QUANTITY offenders , who perpetrated their act in the relatively distant past , concludes that there is no need for the penalties of imprisonment to be served immediately in order to achieve the aims of the criminal law . ... ”", "Both the applicants and the officers appealed to ORG . The applicants submitted that the sentence was too lenient and that the compensation awarded was too low . They argued that the lower court had erred in assessing the gravity of the offence and had wrongly opted for the minimum possible penalty . In their view , the officers ought to be sentenced to an effective prison term of DATE .", "Having held a hearing on DATE , in a judgment of CARDINAL DATE ORG partly upheld and partly reversed the lower court 's judgment . It increased the amount of compensation to BGN CARDINAL for the first applicant , ORG CARDINAL for the second applicant and ORG CARDINAL for Mr PERSON 's son , but upheld the sentence . The court described in detail the events of DATE and held that “ in view of the police officers ' numerical superiority , their younger age , their special training , the proximity of their colleagues , and the fact that in his further actions [ Mr ] PERSON [ had not ] resisted or refused to obey their lawful orders , the physical force used had been in breach of section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) and section CARDINAL ) and ( CARDINAL ) of LAW [ DATE ] , in force at the material time ” ( see paragraphs CARDINAL and CARDINAL below ) . The court 's opinion continued , as relevant :", "“ The factual findings of the [ lower ] court are based on the evidence gathered and are fully accepted by [ this ] court . In view of the facts , the acts committed by the defendants were properly characterised as an offence under LAW ...", "I. Concerning the defendants ' appeal", "In the indictment the prosecution brought charges against the CARDINAL defendants for an offence ... committed in concert . The prosecution has not taken into consideration that the offence under LAW ORG is only negligent as regards the graver consequence [ death ] . Complicity in a criminal offence is only possible in respect of wilful offences , as it presupposes the joint wilful participation of CARDINAL or more persons , whose actions lead in their entirety to the perpetration of the offence , provided always that these persons realise that they are acting in concert with others . The actus reus of the offence under LAW [ LAW ] is complex . The intention to achieve the lesser outcome [ bodily harm ] is combined with negligence in respect of the graver outcome , i.e. the offence is committed with differing types of mens rea , which excludes the possibility of complicity .", "...", "The defendants ' objection concerning the unfoundedness of the lower court 's judgment as regards the authors of the offence is groundless . The experts ' conclusion is that the cranial and cerebral traumas were caused by CARDINAL separate blows to the head , with or against a solid object , delivered with considerable force . The experts provide CARDINAL explanations as to its possible source . According to the first explanation , CARDINAL blow was to the head , either on the left temple or on the right occiput , followed by DATE to the ground and a further blow to the opposite side . According to the second explanation , the CARDINAL injuries may be due to CARDINAL separate consecutive blows with a blunt , solid object . The experts categorically exclude the possibility that the blows were inflicted with the sharp ( metal ) part of the hoe ...", "The [ lower ] court was correct in accepting the second explanation , which is supported by the remaining evidence ... In their statements , including those made at the trial , the CARDINAL defendants admit the fact that they acted violently in apprehending [ Mr ] GPE . ... [ B]oth defendants state that the victim did not fall on the ground at any point . Both aver that [ Mr ] PERSON was standing or squatting . It was therefore impossible for one of the injuries ... to have been the result of a fall to the ground .", "The defendants ' assertion that the victim 's death was the result of light and not grievous bodily harm , as accepted by the [ lower ] court , is groundless and completely unsubstantiated . The conclusions of both medical expert reports are categorical on the point that the heavy cranial and cerebral trauma has in itself resulted in a continuing overall lifeendangering disruption to health , i.e. it corresponded to the medical and biological indications of grievous bodily harm .", "The [ lower ] court has correctly found that the CARDINAL defendants wilfully inflicted grievous bodily harm resulting in death . Its reasoning regarding the intention to inflict bodily harm and the negligence as regards the final result – death DATE are convincing and fully accepted by [ this ] court , so there is no need to repeat them .", "...", "II . Concerning the [ applicants ' ] appeal", "The appeal is partially well - founded . The punishments imposed DATE imprisonment – although the minimum possible by law , are not disproportionately lenient . The [ lower ] court has examined and taken account of all the factors which are material in determining the sentence . On the one hand , it is true that a human life was taken in a situation which did not call for the use of such intense physical violence in respect of [ Mr ] PERSON . On the other hand , the defendants have no prior convictions , are of good character , each of them administered CARDINAL blow to the head of the victim , the death was caused negligently , the [ defendants ] acted with a view to arresting an offender pursuant to the direct orders of their immediate superior , [ Mr ] PERSON did not initially obey and did not throw away the hoe which he was holding and the defendants were discharged from the [ police ] . In view of all this the [ court ] finds that the [ lower ] court 's conclusions as to the quantum of the penalties are wellfounded , as is its conclusion that the correction and reform of the defendants do not call for the imposition of an immediate custodial sentence .", "The appeal is ... wellfounded as regards [ the amount of compensation awarded ] . The quantum of the compensation for non - pecuniary damage is to be determined at the time of delivery of the judgment . At present the courts ' practice is to allow claims in respect of nonpecuniary damage for amounts higher than the claims submitted by the [ applicants ] . For this reason the [ court ] finds that the judgment should be revised , by increasing the sums awarded to each of the applicants up to the full amount of their claims . This level of compensation will reflect the actual pain and suffering which [ the applicants ] have sustained from the loss of their relative . ”", "Both the applicants and the police officers appealed to ORG . The applicants again submitted , inter alia , that the suspended sentence was too lenient . They argued that the lower court 's characterisation of chief sergeant PERSON as a person “ of good character ” was questionable as he had been charged with the battery of a detainee DATE before the beating of PERSON . The police officers submitted , inter alia , that the lower courts had imposed a very severe punishment .", "Having held a hearing on DATE , in a final judgment of DATE ORG upheld the lower court 's judgment in the following terms :", "“ As regards the [ applicants ' ] appeal :", "It is being argued that the [ lower ] courts have erred in ordering the suspension of the sentences of the CARDINAL defendants , and a request is made to order that they serve their sentences .", "This ground of appeal ... is not supported by the materials in the case file and is illfounded . In applying LAW , [ the lower courts ] have weighed all the factors relating to the individual and general deterrence functions [ of the criminal law ] . Taking into consideration [ the defendants ' ] clean criminal record , their good character , the manner in which the offence was committed , namely CARDINAL blow each , the form of the mens rea , namely , negligence by each of the defendants , the behaviour of the victim , and in view of the aims of the punishment ... , the conclusion that the correction and reform of the defendants does not call for the sentence is lawful . This court fully shares it ...", "As regards the appeal by the CARDINAL defendants :", "The grounds of appeal are a breach of the substantive law and the obvious inequity of the sentences imposed and compensation awarded", "Bearing in mind the [ lower courts ' ] findings of fact , which are not subject to review [ by this court ] , this court is of the view that the argument of a violation of the substantive law is unfounded and not supported by the materials in the case file . The authorship of the offence has been proven beyond doubt , and the legal characterisation is correct . Each of the accused ... has executed all the elements of the offence under LAW . The evidence – the statements of the defendants , the witness testimony , combined with the medical expert report and the other written evidence , correctly assessed by both levels of jurisdication ... has led them to hold that the CARDINAL have committed the offence independently of each other , in their capacity of police officers on active duty , in connection with the performance of their duties , thus negligently bringing about the death of [ Mr PERSON ] by wilfully causing him grievous bodily harm . The personal conviction of the courts has been based on objective , comprehensive and complete assessment of all the facts of the case , which have been subjected to a serious and through analysis . In view of the facts , as thus established by the appellate court , the conclusions concerning the actus reus and the mens rea are lawful .", "In this connection , the defendants ' objection that death resulted from light bodily harm is unfounded . An identical objection was made before the appellate court , which reviewed it and ultimately rejected it . The reasons given are detailed and based on the evidence , and therefore shared by this court .", "...", "The arguments concerning the obvious inequity of the sentences imposed and compensations awarded are likewise groundless . In determining the punishment of the CARDINAL defendants , [ the lower courts ] analysed all the mitigating and aggravating circumstances . They correctly found a preponderance of the former and have imposed [ a minimal suspended sentence , within the bounds provided for by law ] . Extra lenience would be unwarranted , as it would not further [ the deterrent and reforming purposes of the criminal law ] .", "The amounts of compensation are likewise equitable . The reparation of the nonpecuniary damage resulting from the offence is assessed by the court on the basis of the facts of the case and the principles of equity ... Taking into account the pain and suffering as well as the irreversibility of the loss sustained , this court considers that the amount set by the [ lower ] court is just and would recompense the [ applicants ] to the utmost degree . ”", "The applicants obtained writs of execution against the QUANTITY police officers on DATE . As the latter apparently refused to pay the applicants of their own accord , on DATE the applicants issued enforcement proceedings against them . During the period DATE the enforcement judge at ORG tried to collect the amounts from the CARDINAL officers , but to no avail , since the officers did not own any seizable assets . For this reason the CARDINAL enforcement proceedings were discontinued towards DATE at the applicants ' request .", "On DATE the CARDINAL applicants and Mr PERSON 's son brought a tort action against ORG and ORG before ORG . They sought nonpecuniary damages for Mr PERSON 's death in the amount of MONEY ( ORG ) for the first applicant , BGL CARDINAL for the second applicant and BGL CARDINAL for Mr PERSON 's son .", "At the first hearing on DATE , ORG stayed the proceedings in anticipation of the outcome of the investigation against the officers . Following completion of the criminal proceedings on DATE ( see paragraph CARDINAL above ) , on DATE ORG resumed examination of the case .", "The court held CARDINAL hearings , on DATE and DATE and CARDINAL DATE . It admitted the judgments given in the criminal proceedings against the police officers in evidence and heard the parties ' pleadings . In a bench ruling of CARDINAL DATE it discontinued the proceedings against ORG , holding that ORG , which had employed the police officers , was the only entity capable of being vicariously liable for their actions .", "In a judgment of DATE ORG ordered ORG to pay ORG CARDINAL to the first applicant , ORG CARDINAL to the second applicant and ORG CARDINAL to Mr PERSON 's son , together with interest at the statutory rate , from DATE , the date of Mr PERSON 's death . It also awarded costs and expenses in the amount of BGN MONEY . It held that the facts surrounding Mr PERSON 's death and the nonpecuniary damage sustained by the applicants as a result had been fully established in the judgments of the criminal courts which had tried the police officers . These judgments , which assessed the applicants ' nonpecuniary damage at ORG CARDINAL,CARDINAL and ORG CARDINAL respectively , were binding on the civil court . The court further noted that the applicants had not been able to collect the awards made in the criminal proceedings and concluded that this called for an award of damages to be paid by the entity which was vicariously liable for the police officers ' actions . It observed however that the applicants had claimed lesser amounts DATE BGN CARDINAL and ORG DATE and it was therefore unable to increase the amount of the awards .", "On DATE ORG appealed . On DATE the applicants increased their claims to ORG CARDINAL,CARDINAL and ORG CARDINAL respectively . ORG held CARDINAL hearings , on DATE and DATE and on DATE , CARDINAL and DATE .", "In a final judgment of CARDINAL DATE ORG upheld the lower court 's judgment . It likewise took into account the findings of the criminal courts and noted that the applicants had not been able to effectively enforce the award of damages made against the police officers . Concerning the increase in the applicants ' claims , the court held that this could not be taken into account , since it had been made for the first time on appeal and as only the defendant had appealed against the firstinstance judgment .", "ORG paid the award of damages to the applicants shortly after the end of the proceedings .", "Article CARDINAL § CARDINAL of the ORG provides that whoever negligently causes the death of another by wilfully inflicting bodily harm on him or her is punishable by a term of imprisonment ranging from DATE in the case of grievous bodily harm , from DATE in the case of intermediate bodily harm , and DATE in the case of light bodily harm .", "Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL of the ORG differentiate bodily harm as grievous , intermediate or light , on the basis of various medical criteria .", "Under LAW , murder is punishable by DATE imprisonment . Under LAW ( CARDINAL ) of the ORG , murder committed by police officers in the performance of their duties is punishable by DATE imprisonment or life , with or without parole .", "Article CARDINAL § CARDINAL of the ORG directs the criminal court to determine the sentence within the bounds provided for by law , taking into account the general rules of criminal law , the dangerousness of the offence and of the offender , the motives for committing the offence , and the remainder of the mitigating and aggravating circumstances .", "Under LAW ORG , the court may suspend a sentence of DATE imprisonment for DATE , provided that the offender has not previously been sentenced to a term of imprisonment for a publicly prosecutable offence , and also provided that the court finds that the aims of the criminal law ( in particular , reform of the offender ) may be furthered without the sentence being served immediately .", "The relevant part of section CARDINAL(CARDINAL ) of the now repealed LAW DATE ( „ Закон за националната полиция “ ) , as in force at the material time , provided :", "“ ... police [ officers ] may use ... force ... when performing their duties only if they [ have no alternative course of action ] , in cases of :", "NORP resistance or refusal [ by a person ] to obey a lawful order ;", "NORP arrest of an offender who does not obey or resists the police [ officers ] ;", "...", "NORP attack against citizens or police [ officers ] ; ... ”", "Under section CARDINAL ) of the LAW , the use of force had to be commensurate to , inter alia , the specific circumstances and the personality of the offender . Section CARDINAL(CARDINAL ) of the LAW directed police officers to “ protect , if possible , the health ... of the persons against whom [ force was being used ] . ” Section CARDINAL(CARDINAL ) of the LAW provided that the use of force had to be discontinued immediately after its aim had been attained .", "Under section DATE of ORG DATE ( „ Закон за задълженията и договорите “ ) , legal persons – including public bodies – are vicariously liable for the tortuous conduct of individuals employed by them ." ]

[ "2" ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "On DATE the NORP police arrested the applicant . On DATE ORG in ORG accused her of forgery and attempted fraud . She and another person were suspected of having attempted to cash CARDINAL cheques for QUANTITY ( ORG ) and MONEY ( ORG ) in DATE . Those cheques were considered to have been forged .", "The applicant denied involvement in any unlawful action . She maintained that the cheques had been issued by foreign investors interested in a business activity which she had been planning to launch in GPE . She further argued that the NORP bank concerned had never contested the validity of the cheque in pounds sterling .", "On DATE the ORG remanded the applicant in custody with effect from DATE . Her detention was considered necessary as there was a risk of her absconding within the meaning of LAW ( a ) of LAW . The judge considered it relevant that the applicant was a foreign national and that she risked a prison term of DATE for the offences in issue . Reference was also made to LAW . ORG heard the applicant and referred to the statement of the applicant 's co - accused and available documentary evidence .", "On DATE ORG extended the applicant 's detention to DATE . It held that , in addition to the above - mentioned grounds , her detention was also necessary as she might influence witnesses or otherwise hamper the investigation within the meaning of LAW ( b ) of LAW . In particular , important witnesses had to be heard in GPE whom the applicant had contacted by phone and fax prior to her detention . ORG found no delays in the investigation and noted that the authorities of GPE , GPE and GPE had to be asked for assistance .", "On DATE ORG extended the applicant 's detention until DATE . As the NORP authorities had not complied with the requests for legal assistance it had been impossible to complete the investigation . It risked being jeopardised if the applicant was released .", "On DATE the Banská Bystrica Regional Court granted a further extension of the detention , until DATE . That decision was justified by the fact that ORG had requested the assistance of the NORP authorities in obtaining witness statements and that those statements had not yet been submitted . The statements were necessary to establish the relevant matters in respect of which the statements of the accused differed . Reference was also made to the applicant 's nationality , the serious nature of the offence of which she was accused and the risk that she might influence witnesses if released . ORG relied on Articles CARDINAL § § CARDINAL(a ) , ( b ) and CARDINAL of ORG .", "On DATE ORG extended the applicant 's detention until DATE . It noted that no procedural steps had been taken DATE . That was , however , due to the absence of a reply from the NORP authorities . ORG expressed the view that the applicant 's detention was strictly necessary until DATE only and that the preliminary proceedings should be completed before that date .", "On DATE the applicant lodged a request for release , with reference , inter alia , to LAW ) , CARDINAL and CARDINAL of the Convention . She argued that the reasons invoked for her detention had fallen away and requested that the court dealing with the request hear her .", "On DATE the ORG dismissed the request . With reference to the applicant 's arguments , the evidence and the statements of witnesses and the applicant 's co - accused it considered that the accusation of the applicant was justified and that the reasons for her detention , as specified in the earlier decisions , persisted . In particular , the applicant might influence witnesses and the law foresaw a minimum penalty exceeding DATE imprisonment for the offence imputed to her .", "ORG decided in camera . Its decision was served on the applicant 's counsel on DATE and DATE . The applicant lodged a complaint on DATE and again on DATE . On DATE the ORG dismissed the complaint .", "In the meantime , on DATE the applicant and her co - accused were indicted before ORG . On DATE that court dismissed the applicant 's request for release . It pointed to the applicant 's nationality and the heavy penalty for the offence of which she was accused . It had been established in the course of preliminary proceedings that in her correspondence the applicant had attempted to influence witnesses . ORG decision was served on counsel for the applicant on CARDINAL DATE . The applicant lodged a complaint . On DATE ORG dismissed that complaint .", "In parallel , on DATE the Prosecutor General petitioned for a further extension of the detention of the applicant and her co - accused , until DATE . The applicant contested that request . She stated , in particular , that all witnesses had been heard and that her foreign nationality did not in itself justify her deprivation of liberty . She argued that the case was not complex and that there had been delays in the proceedings .", "On DATE , ORG extended the applicant 's detention until DATE . It noted that the applicant was accused of having attempted to cash CARDINAL forged cheques and that the suspicion against her and her co - accused persisted . It invoked the risk of the applicant 's absconding with reference to the heavy penalty for the offences imputed to her and the fact that she was a foreign national . Her detention was therefore necessary within the meaning of LAW ) of LAW .", "ORG further admitted that witnesses had been heard . Nevertheless , the applicant 's detention within the meaning of Article CARDINAL § CARDINAL(b ) of LAW remained necessary as the file contained correspondence , which had been written by the applicant or addressed to her , indicating that she had attempted to influence the investigation in the case . The criminal activity imputed to the accused persons was inseparable . There was a risk that they could influence each other or witnesses even at the trial stage of the proceedings . No particular delays in the proceedings had been established ; the relevant procedural steps had been delayed for objective reasons . ORG decided in camera in accordance with the relevant law .", "On DATE the ORG petitioned ORG for a further extension of the applicant 's detention . It was argued that the reasons for her and her co - accused 's detention still existed and that the proceedings risked being jeopardised if they were released . On DATE the applicant 's counsel submitted written observations on that request . She argued that there had been no progress in the case following the indictment and that the length of the proceedings and her detention was excessive . The applicant also requested that ORG hear her .", "On DATE ORG , at a meeting held in camera , extended the applicant 's detention until DATE . It based its decision on the fact that the applicant was a foreign national and held that the indictment indicated that her prosecution was justified . Both the applicant and her co - accused were foreign nationals residing abroad . Considering also the heavy penalty set down in law for such offences , their detention was justified within the meaning of LAW ) and QUANTITY of the Code of Criminal Procedure . Specific reasons for which it had been earlier concluded that the accused might influence witnesses and hamper the proceedings persisted . Reference was also made to ORG decision on the applicant 's request for release given on DATE ( see paragraph CARDINAL above ) .", "ORG further noted that the case was complex from both the factual and the legal point of view . The file comprised CARDINAL pages . Given the short period of time which had lapsed after the filing of the bill of indictment , ORG had not yet had sufficient time to prepare the main hearing and decide on the case . The above extension by DATE of the applicant 's detention should suffice to bring the criminal proceedings to a close .", "On DATE the ORG returned the case to the public prosecutor for further investigation . It decided that the applicant should remain in custody .", "On DATE ORG quashed ORG decision in the part ordering the case to be returned to the public prosecutor . In particular , it did not consider relevant the argument that the file , to the extent that it concerned the applicant 's co - accused , had to be translated into LANGUAGE . ORG ordered ORG to examine the charges against the applicant and her co - accused and dismissed their complaint against the decision ordering their continued detention .", "The applicant was released on DATE following the belowmentioned order of ORG ( see paragraph CARDINAL ) . She returned to GPE .", "The main hearing in the criminal proceedings was scheduled for CARDINAL and DATE . The applicant was absent for health reasons . ORG decided to deal with the charges against her in a separate set of proceedings .", "On DATE the applicant informed ORG that she insisted on the charges against her being determined in her presence and that she still could not attend a hearing for health reasons .", "On DATE the ORG discharged the applicant 's co - accused and ordered his release . On DATE ORG quashed that judgment and returned the case to the public prosecutor for further investigation . ORG noted that witness statements included in the file were contradictory . The facts of the case had not been sufficiently established . In particular , the public prosecutor had proceeded erroneously in that he had abstained from having a witness examined in GPE prior to the filing of the bill of indictment on DATE . Such evidence could have shed light on the matter .", "On DATE ORG returned the applicant 's case to the public prosecutor for further investigation , with reference to ORG judgment of DATE . Subsequently the charges against the applicant and her co - accused were again examined jointly and the authorities of GPE , GPE and GPE were asked for assistance .", "On DATE the applicant informed the investigator that she was unable , because of serious health problems , to undergo a crossexamination with a witness scheduled for DATE .", "In DATE the NORP authorities decided to request their NORP counterpart to hear a representative of the bank concerned as a witness . The proceedings are pending .", "On DATE the applicant lodged a complaint with ORG . She specified that she sought the finding of a breach of LAW ( c ) and CARDINAL of the Convention in the proceedings leading to ORG above - mentioned decision of DATE . In the reasons for her complaint the applicant also invoked LAW and CARDINAL of the LAW . She argued that there had been no relevant reasons for her continued detention , that she had not been released , that ORG had neither heard her nor had it addressed the arguments which she had submitted in writing , and that she had been informed of the decision in issue on DATE only .", "On DATE ORG rejected the complaint as being manifestly ill - founded . It held that neither the way in which ORG had proceeded nor the conclusion which it had reached were contrary to the applicant 's rights under LAW and CARDINAL of the Convention a breach of which she had formally ORG considered to be relevant and sufficient , that her continued detention was still necessary within the meaning of the relevant provisions of LAW .", "On DATE the applicant lodged a second complaint with ORG . She alleged a breach of LAW ( c ) , CARDINAL and CARDINAL of the Convention in the proceedings leading to ORG decision of DATE to extend her detention to DATE . In particular , the applicant argued that there had been no relevant reasons for her continued detention , that it had lasted an excessively long time , and that ORG had not heard her . The applicant requested ORG to order reimbursement of the costs of her legal representation in the constitutional proceedings , which amounted to CARDINAL NORP korunas ( CZK ) , plus value - added tax .", "In a judgment of CARDINAL DATE ORG held that ORG had breached the applicant 's right under LAW in that it had failed to hear her prior to its decision of DATE to extend her detention . It quashed that decision , ordered ORG to release the applicant immediately and to reimburse CARDINAL NORP korunas ( the equivalent of CZK CARDINAL,CARDINAL ) in respect of the costs of her legal representation . In view of this conclusion ORG considered the examination of the applicant 's other complaints unnecessary .", "The following provisions of LAW applicable at the material time are relevant in the present case .", "Under LAW , a person charged with a criminal offence can be detained , inter alia , where there are reasonable grounds for believing that he or she would abscond ( sub - paragraph ( a ) of LAW ) , influence the witnesses or the co - accused or otherwise hamper the investigation ( subparagraph ( b ) ) or continue criminal activities , complete an attempted offence or commit an offence which he or she had prepared or threatened to commit ( sub - paragraph ( c ) ) .", "Article CARDINAL § CARDINAL provides that an accused person can be remanded in custody where he or she is being prosecuted for an offence punishable with a minimum prison sentence of DATE .", "Article CARDINAL § CARDINAL provides that a person 's detention in the context of both preliminary proceedings and during trial must not exceed DATE . In justified cases ORG may extend its duration to a maximum of DATE and , in cases of particularly serious offences , DATE .", "Article CARDINAL § CARDINAL obliges investigators , prosecutors and judges to examine , at each stage of criminal proceedings , whether reasons for the accused person 's detention persist .", "Section CARDINAL(CARDINAL ) provides that a request for proceedings to be started before ORG must indicate , inter alia , the decision which the plaintiff seeks to obtain , specify the reasons for the request and indicate evidence in support .", "Under paragraph CARDINAL of section CARDINAL , ORG is bound by a request from a plaintiff for proceedings to be started unless the LAW expressly provides otherwise .", "Pursuant to section CARDINAL(CARDINAL)(a ) , a complaint must indicate , in addition to the information mentioned in LAW , the fundamental rights or freedoms the violation of which a plaintiff alleges . Paragraph CARDINAL of section CARDINAL requires that plaintiffs who seek a just satisfaction award should specify its extent and indicate the reasons for their claim .", "ORG has declared itself bound , in accordance with section CARDINAL(CARDINAL ) of LAW DATE , by a party 's submission aimed at initiating proceedings before it . ORG has expressly stated that the above was particularly relevant as regards the order which parties seek to obtain as it can only decide on matters which a party requests to be determined ( see , for example , decisions III . ÚS CARDINAL of DATE or III . ÚS CARDINAL of DATE ) ." ]

[ "5" ]

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[ "The applicants are CARDINAL NORP nationals who live in PERSON . The first applicant , PERSON , was born in DATE . She is the mother of the second applicant , PERSON . S. , the third applicant , PERSON . PERSON , and the fourth applicant , PERSON . S. , who were born in DATE , DATE and DATE respectively .", "On DATE the applicants left the apartment in which they lived with PERSON , who was the first applicant ’s husband and the father of the second , third and fourth applicants . The first applicant moved the second , third and fourth applicants away from the apartment to protect them from physical and sexual abuse by PERSON", "On DATE the first applicant filed for divorce against her husband in the PERSON I ORG . On DATE ORG placed the second , third and fourth applicants in her care pending the outcome of the divorce proceedings . On DATE ORG granted the petition for divorce . The divorce was finalised on DATE . The first applicant was granted custody of the second , third and fourth applicants on DATE .", "On DATE the first applicant filed a criminal complaint against her husband on the ground that he had ill - treated both her and the children and had sexually abused CARDINAL of their daughters .", "On DATE the first applicant requested that the PERSON I ORG issue an interim measure ordering her husband to move out of the municipal apartment that they held under a joint tenancy . In making the request , the first applicant referred to her husband ’s behaviour in respect of the children and submitted the opinion of an expert , which indicated that the second , third and fourth applicants had suffered from physical and psychological ill - treatment on account of their father ’s behaviour and expressed the view that it was absolutely necessary to separate the CARDINAL applicants from him .", "Articles DATE and CARDINAL of LAW permitted the courts to issue an interim measure requiring the parties to perform something , forbear from something or bear something . On DATE ORG dismissed the first applicant ’s request as her husband had a tenancy right in respect of the apartment and the court considered that it lacked the power to restrict his right to use it . As a consequence , the applicants had to move away from their home , their family and their friends and the second and third applicants had to move to a new school .", "The first applicant appealed to ORG in PERSON . She informed the court that the children had been placed in her custody and that criminal proceedings had been brought against their father .", "NORP On DATE ORG in PERSON upheld the first - instance decision not to issue an interim measure . It held , with reference to the relevant law and practice , that the first applicant would be entitled to bring proceedings with a view to terminating the joint tenancy of the apartment only after a final decision had been delivered in the divorce proceedings . Ordering an interim measure in the terms requested by the first applicant would impose a disproportionate burden on her husband . ORG indicated , however , that an interim measure could have been issued if the first applicant had instead requested that her husband be ordered to abstain from inappropriate behaviour towards her and the children and to abstain from threatening them .", "The applicants complained to ORG . On DATE , shortly before ORG issued its judgment , the first applicant ’s former husband was convicted by ORG in PERSON of ill - treatment , violence and sexual abuse . He was sentenced to CARDINAL years’ imprisonment . An expert opinion submitted in the context of the criminal proceedings indicated that contact with their father had an adverse effect on the second , third and fourth applicants’ health and development .", "In a judgment dated DATE , ORG found that the PERSON I ORG and ORG in PERSON , by failing to take appropriate action with a view to protecting the second , third and fourth applicants from ill - treatment by their father , had violated their rights under LAW torture , inhuman or degrading treatment or punishment ) and CARDINAL § § CARDINAL and CARDINAL ( inviolability of home ) of the LAW as well as their rights under LAW , which obliges the Contracting Parties to take appropriate measures to protect children from all forms of physical or mental violence , including sexual abuse .", "The documentary evidence in the case was sufficient to conclude that the applicants had been subjected to physical violence and abuse by the husband of the first applicant . The decision stated that the second , third and fourth applicants had not been parties to the proceedings concerning the interim measure . In view of the facts of the case , the ordinary courts should , nevertheless , have issued an interim measure of their own initiative with a view to protecting the children from abuse and ill - treatment by their father . Such an obligation resulted from the relevant provision of LAW as well as from LAW .", "ORG held that the finding of a violation provided in itself appropriate just satisfaction to the CARDINAL applicants concerned . It therefore dismissed their request for compensation for non - pecuniary damage .", "As regards the first applicant , ORG decision stated that an interim measure could have been granted had she phrased her request in a different manner . In reaching that conclusion ORG had not , in ORG view , acted contrary to the first applicant ’s constitutional rights .", "In DATE the relevant legislation had been amended specifically to provide that the domestic courts could order a party “ not to enter temporarily a house or an apartment occupied by a close person or person in his / her care or education in relation to whom there are reasons for he / she being suspected of violence . ” DATE before ORG issued its judgment , the first applicant lodged with the PERSON I ORG a motion for an interim measure ordering , inter alia , her former husband not to enter the common apartment . On DATE PERSON I ORG issued an interim order in those terms , starting with the date of the delivery of the decision and expiring DATE after the order became enforceable . Moreover , the court ordered the first applicant to file an action for exclusion from the apartment within DATE from the date of delivery of the decision . The decision became enforceable on DATE .", "On DATE the first applicant filed an action with the PERSON I ORG to exclude her former husband from using the apartment . On DATE she filed with the PERSON I ORG an action for cancellation of the right to joint lease of the apartment . On DATE the PERSON I ORG cancelled the right to a joint lease of the apartment and the first applicant became the exclusive tenant thereof . Furthermore , the court ordered the applicant ’s former husband to move from the apartment within DATE from the date of final judgment .", "Article CARDINAL ( CARDINAL ) of LAW , provides as follows :", "“ Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties , or if there is a concern that the exercise of judgment would be threatened .", "The competent authority to issue an interim measure is the court which is competent to deal with the case . The parties to the proceedings are those who would be the parties if it concerned the merits . ”", "Article CARDINAL provides that through an interim measure the court may impose upon the party , within the time assigned by the court , to perform something , to forbear from something , or to bear something .", "The amended LAW provided :", "“ Before commencing the action the court may issue an interim measure if it is necessary to arrange the situation of the parties , or if there is a concern that the exercise of judgment would be threatened .", "The competent authority to issue an interim measure is the court which is competent to deal with the case . The parties to the proceedings are those who would be the parties if it concerned the merits . ”", "The amended LAW specifically provides that the court may order a party “ not to enter temporarily a house or an apartment occupied by a close person or person in his / her care or education in relation to whom there are reasons for he / she being suspected of violence . ”", "Article CARDINALa ( CARDINAL) of the Civil Code provides :", "“ If a further cohabitation is unsupportable due to the physical or mental violence or threats of such violence from a husband or former husband , who is the joint user of an apartment , or from a close person jointly using an apartment , based on a motion of CARDINAL of a married couple or former married couple the court can limit a right of use of the other of a married couple or exclude him / her totally from the right of use of an apartment ." ]

[ "3", "8" ]

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[ "The applicant is a NORP national , born in DATE and living in GPE . She is an art dealer . At DATE , she obtained through a transfer of a sales commission a painting that was to be sold by DATE . A statement of DATE , according to which the painting was an authentic work of PERSON ( a famous NORP artist ) , was attached on the back of the painting .", "On DATE , the original owner of the painting reported to the police that the applicant had refused to return the painting despite the expiry of the sales commission and his repeated requests . He considered that a crime had been committed . Subsequently , a police investigation was initiated . The police questioned the applicant and the original owner of the painting . As it appeared that the applicant had sold the painting to a third person , the police questioned him , too . Furthermore , the painting was seized .", "The applicant was charged with aggravated fraud and aggravated embezzlement , committed concurrently , contrary to LAW , section CARDINAL ( CARDINAL ) , and chapter DATE , section CARDINAL ( CARDINAL ) , of LAW ( rikoslaki , strafflag ) . According to the indictment , the applicant had on DATE stolen the painting , worth MONEY ( ORG ) , entrusted to her , by selling it to a third person , deceitfully as her own , for FIM CARDINAL,CARDINAL . Her intention had been to obtain an unjust pecuniary advantage , and the action had caused financial loss to the buyer . The Prosecutor considered that both the embezzlement and the fraud were aggravated in particular since the property in question was very valuable and since considerable benefit had been sought .", "On DATE the court proceedings in ORG ( kihlakunnanoikeus , häradsrätten ) of GPE commenced . The court ordered that the painting remain seized . The court heard the applicant , the original owner and the buyer . The applicant pleaded not guilty to the above - mentioned charges , claiming that there was only a dispute over the ownership and payment of the painting . Furthermore , CARDINAL witnesses were questioned relating to the circumstances of the sales commission and the applicant 's business activities . Later , the applicant was accused of CARDINAL additional counts of embezzlement and fraud .", "On DATE , the applicant , who now had doubts as to whether the painting was authentic , requested the court to authorise and order the examination of its authenticity . ORG ruled , as far as relevant , as follows :", "( Translation )", "\" ... the examination of the authenticity of the painting at this stage does not concern [ the applicant 's ] interests and rights and thus the request concerning such an interlocutory decision can not be complied with . ... \"", "On DATE , ORG convicted the applicant on all CARDINAL charges brought against her , i.e. also on the charge of aggravated embezzlement and aggravated fraud now at issue . The court sentenced her to imprisonment totalling DATE and DATE . The seizure of the painting was lifted , and the court ordered that it be returned to the estate of the buyer .", "On DATE , the applicant appealed to ORG ( hovioikeus , hovrätten ) of GPE requesting that she be acquitted or her sentence be reduced . She submitted that the first charge had led to the other CARDINAL charges . She stated that she would attempt to obtain new evidence concerning the authenticity of the painting and requested that an oral hearing be held or that the case be returned to ORG in case such new evidence appeared .", "On DATE , the applicant , represented by counsel , requested the Prosecutor to order an investigation into the authenticity of the painting . Following her request an investigation was initiated . The police obtained from ORG a statement , dated DATE , according to which the painting was not authentic . On DATE , the police questioned the original owner of the painting . The applicant was not questioned .", "On DATE , the Prosecutor submitted a supplementary police report , including ORG statement , to ORG . In the accompanying letter the ORG asked ORG to take the report into account by virtue of chapter CARDINAL , section CARDINAL , of LAW ( oikeudenkäymiskaari , rättegångsbalk ) . The Prosecutor found that , from the angle of criminal law , the non - authenticity of the painting did not essentially affect the assessment of the case . He stated further that the police had made attempts in order to question the applicant but they had not been able to reach her . The Prosecutor did not specify these attempts any further .", "On DATE , ORG upheld the judgment of ORG without inviting the applicant to submit comments or holding an oral hearing . Furthermore , neither the original owner nor the estate of the buyer were heard . The court did not make any separate decision as to whether the supplementary police report had been taken into account as evidence or not . ORG approved ORG reasoning without making any changes to it and , consequently , in its own reasoning it did not in any way mention the content of the supplementary police report or of ORG statement .", "The applicant found out about the above - mentioned ORG statement in DATE . Following her request , the Prosecutor sent it to her on DATE .", "On DATE , the applicant , assisted by counsel , requested leave to appeal to ORG ( korkein oikeus , högsta domstolen ) . She referred to the fresh statement and maintained that if this information had been available in the lower courts the outcome of the case would have been a different one . She invoked the concept of a fair trial guaranteed by human rights conventions .", "In his comments to ORG stated that the authenticity of the painting was not relevant for the assessment of the criminal case at issue .", "On DATE , ORG on DATE refused the applicant leave to appeal .", "On DATE , the applicant lodged a petition with ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) concerning the ORG 's failure to communicate to her the police report concerning the authenticity of the painting .", "On DATE , the Deputy Parliamentary Ombudsman ( apulaisoikeusasiamies , biträdande justitieombudsman ) found that the Prosecutor , by failing to communicate the supplementary police report to the applicant or her representative , had shown negligence in respect of his official duties . The Deputy Parliamentary Ombudsman took into account that the supplementary police investigation concerned the value of the painting , this being an important element when considering the nature of the offence and the punishment thereupon . As a result , the Deputy Ombudsman addressed a critical remark ( huomautus , anmärkning ) to the Prosecutor .", "NORP The applicant served CARDINAL of the total DATE imprisonment , which means that she spent DATE and DATE in prison .", "", "According to chapter CARDINAL , section CARDINAL , of LAW , the court of appeal may take into account a written pleading or other documents submitted to it after a time - limit has expired if special grounds therefor exist . If the pleading or document can affect the outcome of the case the court of appeal is obliged , under LAW , to request the parties to give written comments , if such a measure is not considered to be manifestly unnecessary ." ]

[ "6" ]

[ "6-1" ]

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[ "NORP The applicants’ names and other details are indicated in the table below . All the applicants except PERSON are NORP retired servicemen entitled to payment of pensions by the ORG . PERSON is the widow of a colonel who died in the crash of a training aircraft .", "On various dates the applicants sued the military commissions in their regions and , in case of PERSON and ORG , ORG and ORG ( ORG ) respectively , claiming payment of a pension or increase of pensions on account of their military service and , in the case of PERSON , on account of her husband ’s death .", "The domestic courts granted the ORG claims ( see details of the judgments in the table below ) . The judgments in cases of GPE and PERSON were upheld on appeal ; other judgments were not appealed against by the defendant authorities . All the judgments in the ORG favour thus became binding and enforceable on the dates indicated in the table below .", "On various dates the ORG of higher courts allowed the defendant authorities’ applications for supervisory review and quashed the judgments in the ORG favour , considering that the lower courts misapplied the material law ( see details of the judgments in the table below ) . In the cases of Odintsova and ORG dismissed the ORG claims by the same judgments . In the other cases the ORG sent the cases back to the first instance courts , which later dismissed the ORG claims .", "In CARDINAL cases ( PERSON , PERSON , ORG , ORG , the judgments in the ORG favour were not enforced . In CARDINAL cases ( GPE , GPE , ORG , ORG and PERSON ) , the judgments in the applicants’ favour were enforced as regards the lump sum and/or DATE awards . It appears that the payment of DATE awards was stopped a short time before or after the quashing of the judgments on supervisory review .", "In the case of PERSON , LOC of PERSON delivered on DATE another judgment in the applicant ’s favour , granting pension arrears and a sum of MONEY ( RUB ) as compensation for non - pecuniary damage and costs . The judgment was not appealed against and became enforceable on DATE . The ORG submitted that all awards had been credited to the applicant ’s bank account on CARDINAL DATE and that a separate sum of RUB CARDINAL had again been credited to the applicant ’s account on DATE as a result of a clerical error . The applicant submitted that the pension arrears awarded by the court had been credited to her account on DATE but the remainder award of RUB CARDINAL had only been credited in DATE .", "On DATE PERSON filed a separate lawsuit against ORG , claiming compensation in respect of pecuniary and non - pecuniary damage . On DATE the ORG of PERSON rejected her claims . On DATE ORG upheld the judgment on appeal .", "The relevant domestic law governing the supervisory review procedure at the material time is summed up in the ORG ’s judgment in the case of Sobelin and Others ( see Sobelin and Others v. GPE , nos . CARDINAL/CARDINAL et al . , § § DATE , CARDINAL DATE ) .", "In DATE judgments delivered against the public authorities were executed in accordance with a special procedure established , inter alia , by the ORG ’s Decree No . CARDINAL of DATE and , subsequently , by Decree No . CARDINAL of DATE , entrusting execution to ORG ( see further details in PERSON and Others v. GPE , nos . PERSON . , § § DATE , DATE ) ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE . The respondent Government are represented by their Agent , Mr PERSON of 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 arrived in GPE . On DATE he was granted a residence permit on the grounds that he lived with a NORP woman and they had had a child , born on DATE . The residence permit was valid until DATE . On an unspecified date the applicant and his partner separated . The applicant and his former partner agreed on access arrangements .", "On DATE ORG ( ulkomaalaisvirasto , utlänningsverket ) rejected the applicant ’s application to renew his residence and work permit on the ground that he had repeatedly committed offences . He unsuccessfully appealed to ORG ( hallinto - oikeus , förvaltningsdomstolen ) of GPE .", "On DATE ORG ordered the applicant to be deported as he was staying in GPE without the required residence permit . He was further made subject to a DATE prohibition on entry into GPE . He appealed to ORG , requesting that the decision be rescinded . He stated that he had lived in GPE for DATE and that he had a child who had a right to visit his father . In GPE he allegedly had no home or close relatives apart from a brother .", "On DATE the access arrangements as previously agreed by the parents were confirmed by ORG ( sosiaalivirasto , socialbyrån ) of GPE , and DATE by ORG ( sosiaalilautakunta , socialnämnden ) . The applicant was granted a right to visit his child every other DATE and during holidays .", "On DATE ORG rejected his appeal against the refusal of a residence permit . On DATE ORG refused leave to appeal .", "On DATE ORG rejected his appeal against the deportation order . It referred to LAW and reasoned , inter alia , that the deportation of the applicant did not amount to an interference with his right to family life , and did not affect the rights of his child contrary to LAW . It concluded that when balancing the interests for and against his expulsion , and taking into account the reasons why his residence permit was not renewed , the applicant could be deported to GPE .", "He applied for leave to appeal to ORG , claiming , inter alia , that he had not committed any recent offences and was capable of supporting himself and his child .", "On DATE he married a woman who had a permanent residence permit in GPE .", "On DATE ORG refused leave to appeal . In its written submissions to ORG the Directorate of Immigration noted that the applicant had been ordered to be deported as he had committed CARDINAL petty offences . After the deportation order he had committed a further CARDINAL offences , namely driving a motor - vehicle without a licence and was further suspected of misleading an official by using a false identity .", "According to the information provided by the ORG , which was not denied by the applicant , the applicant re - entered GPE in DATE . Subsequently he applied twice for a new residence permit on the basis of his new marriage , his son and his family ties . His applications were rejected . In its decision of CARDINAL DATE ORG found that the applicant endangered public order and security and considered that his marriage was a sham . On DATE the ORG agreed , noting , furthermore , that the spouses’ divorce was pending . Further , according to that information , the applicant ’s prohibition on entry into GPE remains in force until DATE .", "Section CARDINAL , subsection CARDINAL ( PERSON ) of LAW ( ulkomaalaislaki , utlänningslagen ; CARDINAL , “ the LAW ” ) , as in force at the relevant time , provided that the application of the LAW should not restrict aliens’ rights any more than necessary .", "Section CARDINAL , subsection CARDINAL ( CARDINAL ) of the LAW provided that an alien could be deported if he resided in GPE without the required passport or a residence permit . According to subsection CARDINAL ( CARDINAL ) an alien could be deported , inter alia , if he or she had committed an offence for which the minimum penalty was DATE imprisonment , or if he or she had repeatedly committed criminal offences .", "Section CARDINAL of the Act provided that circumstances such as the length of the alien ’s stay in GPE , the existence of a parent - child relationship , family and other ties with GPE , or , in connection with section CARDINAL , subsection CARDINAL(CARDINAL ) of the LAW , the nature of the offence or offences committed , had to be taken into account as a whole when deportation was being considered .", "Section CARDINAL ( NORP ) of the Act provided that an expulsion may be ordered by ORG if so requested by the police . ORG could in certain exceptional circumstances order an expulsion even if the measure had not been requested by the police . The person concerned had to be heard .", "Section CARDINAL ( NORP ) of the Act provided that an alien could be prohibited from entry into GPE for a maximum of DATE or until further notice in a decision concerning deportation or in a decision concerning refusal of entry made by ORG . Such an order could be revoked by ORG , either entirely or for a limited period , owing to changed circumstances or for an important personal reason .", "The Government referred to the following decisions of ORG .", "ORG DATE A CARDINAL : The applicant had repeatedly committed offences . After being informed of a deportation order , he had married a NORP citizen . He had a child with another NORP citizen . He also studied at a university . Considering all the facts of the case , the circumstances as a whole and especially the type of the offence , the applicant ’s deportation did not violate his right .", "ORG DATE A CARDINAL : The court found no sufficient reasons for deporting the applicant family from GPE on the ground that they had no visa or residence permits , given their long stay in GPE and their other circumstances and ties with the NORP society .", "ORG DATE A CARDINAL : The court did not find grounds for deporting the applicant , given his ties with GPE , including his marriage - like relationship with a NORP citizen of the same sex .", "KHO DATE A CARDINAL : The court did not find sufficient grounds for deporting the family , given the children ’s interests and the family ’s circumstances as a whole . In that case , the applicant had been granted a residence permit for his studies at a university . The residence permits of the applicant and his family members were not extended because the applicant had not pursued his studies . ORG found that the family had lived together in GPE DATE , during which it had integrated into NORP society and its way of life . The elder child went to a NORP school and the younger child was at a kindergarten . The family members spoke NORP and had relatives in GPE . The parents carried on business in GPE , and therefore their subsistence was secured at least partly .", "Decision No . CARDINAL of DATE : The court found no sufficient grounds for deporting the applicant , who had immigrated to GPE together with his mother in DATE at DATE . The court stated , inter alia , that the then NORP husband of the applicant ’s mother had adopted him abroad in DATE . He had a child with a NORP citizen , and they had joint custody of the child . He did not live together with the child or the child ’s mother . The applicant had committed a number of offences , including an aggravated narcotics offence . He had also undergone narcotics detoxification . However , the applicant had a permanent residence permit for GPE since DATE . At the time of the court ’s ruling he had lived in GPE for DATE . In the overall assessment of the case , the court paid particular attention to his long stay in GPE and to the fact that he had received his school education in GPE . He had integrated into NORP society and had no ties with his home country .", "KHO CARDINAL:CARDINAL : The court found that the facts speaking against deportation of the applicant had more weight than the CARDINAL aggravated narcotics offences , consisting of the smuggling of a large amount of hashish , which he had committed in DATE . The court took into account , inter alia , the applicant ’s family life with a NORP citizen and their CARDINAL children , the problems they would have if they had to settle in the applicant ’s home country , the length of time taken to process the case and the fact that the applicant had not committed any other offences ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the ORG sentenced the applicant to DATE and CARDINAL months’ imprisonment . The decision became final on DATE with the decision of ORG and ORG .", "The applicant was arrested on DATE . He remained in prison until his release on probation on CARDINAL DATE . He served his sentence as follows :", "- from DATE to DATE in FAC ;", "- from CARDINAL to CARDINAL DATE in ORG ;", "- from DATE to DATE in FAC ;", "- from DATE to DATE in ORG ;", "- from DATE to CARDINAL DATE in PERSON ;", "- from DATE to CARDINAL DATE in FAC ;", "- from DATE to DATE in PERSON ;", "- from DATE to DATE in FAC ;", "- from DATE to DATE in ORG ;", "- from DATE to DATE in PERSON ;", "- from DATE to DATE in ORG ;", "- from DATE to DATE in FAC ;", "- from DATE to CARDINAL DATE in LOC ;", "- from DATE to DATE in FAC ;", "- from DATE to DATE in ORG ;", "- from DATE to CARDINAL DATE in FAC ;", "- from DATE to CARDINAL DATE in LOC ;", "- from DATE to DATE in FAC ;", "- from DATE in ORG ;", "- from DATE to CARDINAL DATE in Ploieşti Prison ;", "- from DATE to CARDINAL DATE in LOC ;", "- from DATE to CARDINAL DATE in FAC ;", "- from DATE to CARDINAL DATE in ORG ;", "- from DATE in FAC ;", "- from DATE to CARDINAL DATE in ORG ;", "- from DATE to DATE in ORG ;", "- from DATE in ORG ;", "- from DATE to CARDINAL DATE in FAC ;", "- from DATE to DATE in FAC ;", "- from DATE to DATE in FAC ;", "- from DATE in ORG ;", "- from DATE to CARDINAL DATE in PERSON ;", "- from DATE to CARDINAL DATE in FAC ;", "- from DATE to DATE in FAC ;", "- from DATE to CARDINAL DATE in FAC ;", "- from DATE to CARDINAL DATE in FAC ;", "- from DATE to CARDINAL DATE in PERSON and FAC .", "The exact circumstances of the applicant ’s detention are in dispute between the parties .", "In respect of all the establishments in which he had been detained , the applicant alleged that he had been kept in overcrowded cells , in poor conditions of hygiene , that the food had been poor , and that he did not enjoy enough out - of - cell time and appropriate activities .", "He also referred to the information provided in the ORG and ORG - CH reports and to the conditions of detention already established by the ORG in its previous judgments with respect to each of the detention facilities where he was detained , alleging that he had experienced the same conditions .", "NORP The material conditions in LOC throughout the periods when he was detained there DATE and DATE , were described by the applicant as follows .", "The cells were overcrowded and he often had to share an QUANTITY wide bed with another inmate . He shared cells equipped with CARDINAL beds with CARDINAL detainees : in cell no . CARDINAL ( formerly no . CARDINAL ) there were CARDINAL beds for CARDINAL inmates ; in cell no . DATE ( formerly no . CARDINAL ) there were CARDINAL beds for CARDINAL inmates ; in cell no . CARDINAL ( formerly no . CARDINAL ) there were CARDINAL beds for CARDINAL inmates ; and in cell no . CARDINAL ( formerly no . CARDINAL ) there were QUANTITY beds for CARDINAL inmates .", "The above information makes it possible to calculate the personal space available to each detainee and is consistent with the information submitted by the ORG and ORG ( “ ORG ” ) and with the ORG reports on the surface of cells and the occupancy rate . For instance , in DATE there were CARDINAL detainees in FAC , whereas the legal capacity of the prison was CARDINAL places . In terms of the minimum space of QUANTITY per person recommended by the ORG , the prison should have housed CARDINAL inmates . The applicant referred to the ORG ’s findings that the main problem of Ploieşti Prison was overcrowding , with CARDINAL CARDINAL square metres of personal space per detainee .", "There were only bunk beds , and the top bed was QUANTITY high . There were no tables in the cells and there was no dining room , so detainees had their meals and other activities ( writing , playing chess , and so on ) in bed . Cells had CARDINAL window , which was QUANTITY wide and QUANTITY high .", "Cells were infested with insects , and the bed linen was unclean and lice - infested .", "There were CARDINAL or CARDINAL sinks to a cell , providing cold water only .", "Access to communal showers with hot water was allowed only once DATE .", "The applicant alleged a lack of activities outside the cell during his stay in FAC . He referred also to the ORG findings that the lack of DATE activities in that prison was another major problem .", "The applicant alleged that the cells in ORG were overcrowded too , so he had to share a bed with another inmate . In the cell he occupied , no . DATE , there were CARDINAL beds for CARDINAL inmates .", "The sinks in the cell did not have hot water and there were CARDINAL toilets for all CARDINAL prisoners .", "The material conditions in LOC and its FAC throughout his detention there DATE , were described by the applicant as follows .", "There was overcrowding in LOC and detainees had QUANTITY per person .", "There were no chairs in the cell , and the metal bunk beds were designed so that detainees were not able to sit up straight on the lower bed .", "Lavatories in the cells had deteriorated ceilings and walls and hot water was available only once a week for TIME .", "NORP Moreover , during an unspecified period in DATE the water was cut off TIME and TIME , a situation due , according to a statement made by the head of logistics at FAC , to a general water shortage .", "As a result of these conditions , the applicant was unable to maintain a proper standard of corporal hygiene .", "The material conditions which the applicant experienced during his periods of detention in PERSON and its hospital from DATE until his release in DATE were described by the applicant as follows .", "Overcrowding was general and severe throughout the prison and the personal space per detainee was extremely limited : cells with a surface of QUANTITY were accommodating CARDINAL prisoners , and cells with a surface of QUANTITY housed CARDINAL prisoners . There were several rows of bunk beds . The applicant often had to share a bed with another inmate ; in cell no . CARDINAL , for instance , there were CARDINAL beds for CARDINAL inmates , and in cell no . CARDINAL there were CARDINAL beds for CARDINAL inmates .", "The above information makes it possible to calculate the personal space available to each detainee and is consistent with the information submitted by the ORG and ORG ( “ ORG ” ) on the surface of cells and the occupancy rate . DATE the personal space available to detainees , according to the DATE information recorded in the official registers , varied from QUANTITY in DATE to QUANTITY in DATE and QUANTITY from DATE to DATE . During DATE , only in DATE did the applicant have personal space exceeding QUANTITY , that is , QUANTITY , to be precise .", "The sanitary facilities were poor , the toilets had no water supply and the sinks in the cells had no hot water .", "Cells were often dirty and the bed linen was old , worn and often unclean .", "Sanitary conditions were very poor , there were cockroaches , rats , lice and bedbugs in the prison ; the applicant was even bitten by a rat in DATE , for which he was given a vaccination .", "There were hardly any out - of - cell activities .", "The Government submitted CARDINAL pages with general information on the legal framework and conditions of detention in prisons in GPE , and part of the applicant ’s administrative file in detention .", "With regard to overcrowding , they submitted that the overcrowding problem had been solved in DATE , save in Ploieşti Prison , where it had been solved only in DATE . The Government provided information submitted by the ORG concerning the number of beds available in each prison and the number of detainees accommodated DATE . It shows that in the prisons of PERSON , PERSON and PERSON , the number of beds has exceeded the number of prisoners since DATE . In LOC the number of beds has exceeded the number of detainees since DATE .", "The Government submitted nonetheless that it was not always possible to determine the precise cells where the applicant had been detained , as prison records were regularly destroyed after a certain time .", "Detainees were responsible for cleaning the cells and were accordingly provided with the necessary cleaning products . The other parts of the prisons were cleaned twice a DATE or whenever necessary , specialised companies were in charge of disinfesting the LOC DATE or whenever necessary and the bed sheets were changed once DATE .", "It was the legal right of detainees to be provided with the necessary products for their personal hygiene .", "DATE and DATE substantial investments were made to modernise the prisons . In each prison there was a committee in charge of supervising the condition of the buildings and cells and ordering repairs whenever necessary . These committees functioned or function according to orders nos . CARDINAL/CARDINAL , DATE and CARDINAL of ORG ( GDP ) within ORG , and order no . ORG of the Director General of ORG .", "As a result of the entry into force of Law no . CARDINAL/CARDINAL , the domestic legislation concerning detention facilities now complied with ORG recommendations on lighting , heating , ventilation , sanitary installations and furniture in prisons .", "NORP In all prisons the quality of drinking water was checked regularly , as required by Law no . CARDINAL/CARDINAL , Government Decision no . FAC and Order no . CARDINAL of the GDP ’s Director General . Cut - offs were purely accidental or limited in time . As for the food , the quantity and quality were set according to the categories of detainees , as prescribed by Order no . CARDINAL of the Minister of ORG .", "For an ordinary , male , non - working detainee , the standard was set by “ Norm no . CARDINAL ” at CARDINAL calories per day , from a diet consisting of starch , pork meat , vegetables of the Apiaceae family , biscuits , tinned vegetables , margarine , oil , marmalade , QUANTITY of salted cheese , onion and garlic , sugar and various spices . Other kinds of meat , fresh vegetables and dairy products , as well as eggs and fruit , dried or fresh , were reserved for particular categories of detainees , such as pregnant women and their babies and sick detainees during their stay in a hospital .", "Before the adoption of PERSON no . CARDINAL/CARDINAL , prisoners were entitled to CARDINAL shower per week and they could have their bed sheets changed once every fortnight .", "Law no . CARDINAL/CARDINAL improved this situation , providing for detainees to have a shower at least twice DATE and , since all prisons now had a laundry service , bed sheets were changed DATE .", "All prisons had a central heating system and cells were heated in DATE with warmers . The Minister of ORG ’s Order no . CARDINAL/C/CARDINAL laid down clear rules regulating the heating of prisons according to their geographical location . In DATE , according to an order of the GDP ’s Director General , cell doors had to be kept open and sustained efforts were made to allow detainees to spend as much time outside the cell as possible .", "The Government made specific submissions in respect of the following detention facilities in which the applicant was detained :", "The Government had no information concerning the dimensions of the cells , the number of beds and the available space .", "There was no refectory room in FAC , so prisoners had their meals in their cells , where tables were part of the furniture .", "Air circulation was possible through the cell windows .", "Each cell had CARDINAL sinks with cold water . Before DATE , prisoners were allowed to shower once DATE . After the entry into force of PERSON no . CARDINAL , they were entitled to QUANTITY showers DATE .", "As to outside activities , before DATE the applicant was entitled to a daily TIME walk . Law no . CARDINAL/CARDINAL increased the duration of the DATE walk , and the new norm depended on the detention regime ( open , semi - open and closed ) .", "Moreover , the applicant had taken part in many out - of - cell activities which , before PERSON no . CARDINAL/CARDINAL entered into force , were available DATE to detainees in each cell . After DATE , only prisoners with an open or semi - open regime were entitled to daily activities .", "As regards the severe overcrowding in FAC , the Director of ORG had taken effective measures in DATE to diminish the number of prisoners admitted to prison .", "The Government had no information concerning the dimensions of the cells , the number of beds and the available space .", "Cells contained beds , a table , a bench , a coat hanger , a stand for a TV set and a TV set .", "A sanitary annex was equipped with sinks , shower , and toilets .", "Each cell and sanitary annex had windows , which let in air and natural light .", "Detention cell no . DATE , where the applicant alleged that he had been detained , had CARDINAL beds and CARDINAL prisoners .", "The number of detainees did not exceed the number of beds . The cell , with a surface of QUANTITY and a window measuring QUANTITY , contained CARDINAL beds , a table , a bench , a coat hanger and a stand for a TV set . QUANTITY store room with a QUANTITY window was attached to the cell .", "A sanitary annex measuring QUANTITY was attached to the cell , equipped with CARDINAL sinks , CARDINAL shower , a toilet , and a window measuring QUANTITY .", "In DATE , the cells were heated to QUANTITY . Hot and cold water was available permanently . Until DATE , detainees were allowed to use the shower DATE , and thereafter twice a DATE . However , in DATE , to save money , there were restrictions on the use of cold water .", "The applicant was involved in many activities outside the cell , such as building wooden ships ( from DATE ) , writing articles for CARDINAL prison newspapers , attending religious activities ( from DATE ) and a special programme to prevent HIV infection and the consumption of illicit drugs , and he frequently used the prison library .", "The applicant also received psychological assistance for his problems .", "NORP The prison records indicating the cells occupied by the applicant from DATE had been destroyed .", "In DATE and DATE the applicant had occupied cells no . CARDINAL , which measured QUANTITY , and no . CARDINAL , measuring QUANTITY . CARDINAL persons had been held with him at a time .", "In DATE and DATE the applicant had occupied cell no . CARDINAL , measuring QUANTITY . CARDINAL persons had been held with him at a time , although no exact details were available .", "The applicant had also occupied the following cells in DATE and DATE :", "- nos . CARDINAL and ORG , each measuring QUANTITY and shared with CARDINAL other persons ;", "- no . CARDINAL , measuring QUANTITY , with CARDINAL other persons ;", "- no . CARDINAL , measuring QUANTITY , with CARDINAL other persons ;", "- no . CARDINAL , measuring QUANTITY , with CARDINAL other persons ;", "- no . CARDINAL , measuring QUANTITY , with CARDINAL other persons ;", "- no . ORG , measuring QUANTITY , with CARDINAL other persons .", "All the cells had good air circulation and natural light coming from CARDINAL windows , in the cell , the sanitary group and the store room .", "Sanitary groups in the cells were disinfected DATE , cells were whitewashed whenever necessary , and rat extermination and treatment with insecticide were carried out at least once DATE .", "Detainees were allowed to use the showers DATE , on DATE and DATE .", "Cold water was available permanently , and in DATE a water purification system was introduced for drinking water .", "As for outside activities , before DATE the applicant was entitled to a daily TIME walk . Law no . CARDINAL/CARDINAL increased that to TIME a day .", "Moreover , the applicant took part in many out - of - cell activities , such as sanitary , legal , moral and religious activities . He was also free to participate in activities focusing on family life and the prevention of HIV infection , sports and intellectual competitions , and maintaining a pro - active attitude to social activities .", "DATE . Both the applicant and the respondent Government relied mainly on documents from the applicant ’s prison medical file . They each interpreted the information in the documents differently , however .", "The applicant alleged that while in detention he had developed various diseases as a result of the poor conditions . He alleged a lack of adequate treatment by the prison doctor and a lack of medicines .", "The applicant ’s medical record drawn up when he was placed in detention on DATE made no reference to any disease save for hepatitis which he had developed DATE .", "The applicant claimed that DATE he developed numerous dental problems , which became very serious for lack of proper treatment and monitoring .", "On DATE the applicant was seen by a prison dentist , who diagnosed an abscess .", "He claimed that in DATE he had had several teeth extracted , but this was not recorded in his medical file .", "From DATE , while in Ploieşti Prison , the applicant was issued with a series of medical records which referred to his dental health .", "In DATE , for example , he received medical treatment with antibiotics and pain killers for toothache and regular headaches .", "On DATE , in reply to his request to see a dentist , the applicant was informed by FAC that the prison dentist was on maternity leave . As a consequence , only emergencies were taken to ORG . His case was not an emergency .", "On DATE , FAC informed the ORG that the applicant had personality disorders and problems affecting his nose , but that he did not have any dental problems requiring emergency treatment .", "On DATE he was diagnosed with occipital neuralgia ( PERSON ’s neuralgia ) , for which treatment was recommended .", "DATE and DATE the applicant sent numerous letters to the ORG about his dental problems .", "DATE . On CARDINAL May and CARDINAL DATE the ORG informed the applicant by letter that Ploieşti Prison had no dentist and that he would be sent to see the dentist at FAC for urgent dental treatment only . The applicant was never sent to FAC for dental treatment .", "On DATE , the applicant having requested a stay of execution of his sentence on health grounds , an official medical report issued by ORG diagnosed the applicant as having occipital neuralgia which could be treated within the prison system . No treatment was prescribed for his neuralgia and no mention was made of his dental problems .", "On DATE the applicant was informed by the ORG that he had been diagnosed with “ partial edentulism ” ( loss of teeth ) and that the dental prosthesis he had been recommended could be manufactured within the prison dentistry system , but only when he could afford to pay for it .", "On DATE the partial edentulism diagnosis was confirmed by ORG , which also diagnosed chronic periodontitis and recommended further dental extraction . On DATE the applicant was hospitalised because of his frontal and lateral edentulism and a tooth was extracted ; further monitoring was recommended .", "NORP The applicant ’s medical record indicated chronic periodontitis on the following dates : CARDINAL , DATE and DATE , DATE , DATE , DATE , and CARDINAL DATE , and DATE and DATE , but there is no mention of any treatment prescribed for this ailment .", "In DATE the applicant complained on numerous occasions ( in DATE , DATE , DATE and DATE ) that he was not receiving appropriate medical treatment . In reply , based on information provided by FAC , the ORG informed him that he was receiving appropriate treatment .", "On DATE and CARDINAL DATE the applicant submitted the same complaint to ORG . He provided details of his condition ( a swollen neck and clearly visible injuries on his neck , sharp pains in the ears and blood in his saliva ) , and indicated that he had not been seen by a doctor .", "The applicant was hospitalised in ORG from DATE and was treated with antibiotics and pain killers . A medical letter of CARDINAL DATE indicated that the applicant was suffering from multiple and complicated dental caries , chronic generalised periodontitis requiring treatment , frontal edentulism , neuralgia of the superior laryngeal nerve , nasal septal deviation , chronic rhinitis and occipital neuralgia requiring treatment . Special diet , antibiotics and treatment of the applicant ’s dental problems were further recommended .", "On DATE the ORG confirmed that the applicant had swollen glands and nodules in the mouth , but denied any link between these symptoms and the applicant ’s dental problems , alleging that the latter had been treated .", "The applicant had several teeth extracted DATE and DATE .", "A medical report of DATE indicated that the applicant was suffering from chronic periodontitis . No treatment was prescribed .", "On DATE the applicant was able to consult a neurologist , who found that his migraine had worsened in terms of intensity and frequency .", "On DATE the applicant was examined at ORG where he was diagnosed with chronic pharyngitis and dental radicular remains .", "The applicant ’s medical record in ORG mentioned migraine on DATE ; no treatment was mentioned .", "On CARDINAL DATE the applicant ’s medical file indicated that the applicant had lost CARDINAL teeth and that little remained of CARDINAL other teeth .", "DATE and DATE the applicant was hospitalised at FAC , where he was diagnosed with duodenal ulcer , chronic hepatitis , chronic migraine , biliary dyskinesia and urinary tract infection . He was not examined by the dentist , who was on leave .", "On DATE the administration of ORG indicated in a letter to ORG that the applicant was not known to have any chronic diseases .", "On DATE , while in FAC , the applicant demanded proper treatment for his dental problems , including dentures , and said that he was ready to bear the cost of the treatment .", "On DATE ORG informed the applicant , in reply to his renewed request for a dental prosthesis that he had to pay PERCENT of its price .", "In DATE the applicant reiterated his request for urgent treatment and informed the authorities that he was finally in a position to pay the necessary costs .", "On DATE he was allowed to start the treatment for his dental problems at his own expense in the private practice of PERSON in the city of Ploieşti , with appointments and treatment ( including a prosthesis ) on CARDINAL , DATE , DATE and DATE , CARDINAL , DATE , DATE and DATE , CARDINAL , DATE and DATE , and CARDINAL , DATE and DATE . During the appointments he was under prison escort . The medical findings and the treatment prescribed were recorded in health reports which were included in his prison medical file .", "The applicant submitted to the ORG a copy of the medical report following his first appointment , on DATE , from which it appears that he had caries and needed a prosthesis .", "By DATE the applicant had lost CARDINAL teeth .", "The Government submitted that while in LOC the applicant was diagnosed with tooth abscesses , partial edentulism , gum inflammation and chronic periodontitis .", "He was examined , diagnosed and/or underwent treatment as follows :", "- tooth abscesses , on CARDINAL , DATE , DATE and DATE , on CARDINAL and DATE and on DATE ;", "- tooth pain , facial and tooth neuralgia , on DATE , CARDINAL DATE , CARDINAL DATE , DATE and DATE ;", "- periodontal inflammation , on DATE ;", "- chronic periodontitis , on CARDINAL DATE and DATE and DATE ;", "- tooth extraction , on DATE ;", "- vital dental pulp extirpation , on DATE ; and", "- coronary obturation of CARDINAL root canal , on DATE .", "For all these problems he received appropriate treatment with antibiotics , vitamins , anti - inflammatory drugs and pain killers .", "While in ORG , the applicant was examined and diagnosed with periodontal abscess on DATE and with vestibular abscess on DATE , for which he received antibiotic treatment .", "He also underwent the following surgery : CARDINAL vital dental pulp extirpations on DATE , coronary obturation on DATE , root canal obturation on DATE , as well as CARDINAL dental extractions , on DATE and DATE .", "On DATE the applicant was taken to ORG in GPE , where no disease “ requiring emergency surgery ” was detected .", "The Government submitted a letter of CARDINAL DATE from the Director of ORG , in which the Director indicated that , upon examination of the applicant ’s prison medical file , it appeared that the applicant had received treatment for his dental problems from DATE until DATE . He admitted that it did not emerge from that file that any therapy plan had been conceived in respect of the applicant ’s dental problems . Lastly , the letter indicated that from CARDINAL DATE the applicant had been consulting a private dentist in Ploieşti to have a prosthesis made .", "Lastly , the ORG submitted an undated medical record concerning the applicant from which it appears that he was provided with an estimate of the costs of a dental prosthesis by the private practice of Dr ORG , where he had been treated DATE ( see paragraph CARDINAL above ) .", "In DATE and DATE the applicant made numerous complaints on the basis of Government Ordinance no . MONEY ( see paragraph CARDINAL below ) concerning the poor conditions of his detention , including the lack of beds and living space , and inadequate medical treatment .", "For instance , on DATE the applicant lodged a complaint with ORG , complaining of overcrowding , a poor diet and lack of appropriate medical care .", "This complaint was eventually dismissed by a final judgment of ORG on DATE , which found that “ the conditions of detention complained of exist in all prisons and can not therefore be considered as an action or a failure imputable to the prison administration and therefore contrary to the legal provisions ” .", "Following the entry into force of Law no . CARDINAL on the execution of sentences ( see paragraph QUANTITY below ) , the applicant lodged a complaint with the delegate judge concerning the conditions of his detention , and in particular , poor hygiene , lack of personal space , lack of dental examinations and appropriate medical treatment in general , and inappropriate and insufficient food .", "On DATE the delegate judge dismissed the complaint on the grounds that the conditions of detention in FAC were not contrary to the requirements of either the domestic law or ORG instruments , that ORG had not had a dentist since DATE and that therefore detainees were taken for consultation in limited numbers to ORG , and that in any event , PERCENT of the prison population in GPE had dental problems . The applicant was also informed that he would be taken to see a dentist at LOC on DATE .", "The applicant ’s appeal against this decision was dismissed on DATE .", "On the basis of LAW , in conjunction with LAW ) , the applicant made several requests for a stay of execution of his sentence , in order to work and earn the money he needed for his family and to afford proper medical treatment for himself .", "His request made in DATE was eventually dismissed by ORG on DATE , despite a favourable recommendation by ORG .", "Another request , made in DATE , was dismissed on DATE by ORG , and a request made in DATE was eventually dismissed by ORG on DATE .", "The applicant also lodged a criminal complaint against ORG , the general practitioner at FAC , alleging that he was left without appropriate medical care for his various ailments , such as dental and eye diseases , headaches , stomach ulcer , sinusitis and cervical spinal cord compression .", "On DATE the military prosecutor in charge of the investigation took a statement from the doctor , who declared that the applicant had no chronic or acute disease that required emergency treatment . DATE , the prosecutor decided not to open proceedings against the doctor . The applicant ’s appeal against that decision was dismissed on DATE by a higher - ranking prosecutor as having been lodged out of time .", "The applicant lodged a complaint against the ORG decisions with ORG , which dismissed it on DATE . This decision was upheld by ORG ( ORG ) on DATE .", "Articles CARDINAL and CARDINAL of the Civil Code provide that any person who has suffered damage can seek redress by bringing a civil action against the person who intentionally or negligently caused that damage .", "Excerpts from the relevant provisions of Law no . CARDINAL , on the execution of sentences , concerning the rights of detainees are described in DATE and CARDINAL of the PERSON judgment ( see ORG v. GPE , no . MONEY , CARDINAL DATE ) .", "Law no . CARDINAL was replaced by Emergency Ordinance no . CARDINAL ( “ LAW ” ) on the rights of prisoners , adopted by the Government on DATE and ratified by ORG on DATE . The ORG stated , in section CARDINAL , that prisoners had the right to bring legal proceedings before a court concerning measures taken by prison authorities in connection with their rights provided for by law . The court could either cancel the impugned measure or reject the complaint .", "Emergency Ordinance no . CARDINAL was repealed on DATE by PERSON no . CARDINAL/CARDINAL on the execution of sentences , which in its LAW provides for a similar appeal to be lodged with a judge delegated by the court of appeal to supervise the observance of the ORG rights . The delegate judge ’s decisions can be appealed against to a court . The delegate judge and the court can either cancel the impugned measure or reject the complaint .", "Law no . CARDINAL/CARDINAL also stipulates that sentences must be executed in conditions compatible with respect for human dignity , and that each detainee must be provided with a bed , that cells must have natural light , that detainees must wear civilian clothes when serving their sentences , and that if they do not have any , these should be provided free of charge by the prison authorities .", "No provision deals with the structural quality of the place of detention or how much space detainees should have .", "Order No . CARDINAL of the Minister of Justice , of CARDINAL DATE , concerning compulsory minimum standards in prison facilities , entered into force on DATE . According to this order , the minimum living space was set at QUANTITY per person ( QUANTITY per person ) for prisoners assigned to the open and semi - open prison regime , and QUANTITY per person for other categories of prisoners , including minors and remand prisoners .", "Joint Order No . CARDINAL/C/CARDINAL/CARDINAL of the Ministers of Justice and ORG , of DATE , concerning health insurance for detained persons provided , inter alia , that only detainees who lacked financial resources and had lost PERCENT of their chewing ability while in detention were entitled to a free prosthesis . In other cases , detainees had to bear part of the cost of the prosthesis .", "On DATE the Ministers of Justice and ORG issued a new Joint Order No . CARDINAL/CARDINAL/CARDINAL concerning health insurance for detained persons . According to this order , detained persons are entitled in all cases to free medical assistance from a special budget at the disposal of ORG .", "The Standard Minimum Rules for the Treatment of Prisoners , adopted by ORG on ORG and the Treatment of Offenders , held in GPE in DATE , and approved by ORG by its resolutions CARDINAL C ( XXIV ) , of CARDINAL DATE , and CARDINAL ( LXII ) , of CARDINAL DATE , provide , in particular , as follows :", "“ CARDINAL . All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health , due regard being paid to climatic conditions and particularly to cubic content of air , minimum floor space , lighting , heating and ventilation ...", "In all places where prisoners are required to live or work ,", "( a ) The windows shall be large enough to enable the prisoners to read or work by natural light , and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation ;", "( b ) PERSON light shall be provided sufficient for the prisoners to read or work without injury to eyesight .", "The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner .", "Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower , at a temperature suitable to the climate , as frequently as necessary for general hygiene according to DATE and geographical region , but at least once a week in a temperate climate .", "All parts of an institution regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times .", "Prisoners shall be required to keep their persons clean , and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness ...", "Every prisoner shall , in accordance with local or national standards , be provided with a separate bed , and with separate and sufficient bedding which shall be clean when issued , kept in good order and changed often enough to ensure its cleanliness .", "( CARDINAL ) Every prisoner shall be provided by the administration at the usual TIME with food of nutritional value adequate for health and strength , of wholesome quality and well prepared and served .", "( CARDINAL ) Drinking water shall be available to every prisoner whenever he needs it .", "( CARDINAL ) Every prisoner who is not employed in outdoor work shall have TIME of suitable exercise in the open air DATE if the weather permits .", "( CARDINAL ) The transport of prisoners in conveyances with inadequate ventilation or light , or in any way which would subject them to unnecessary physical hardship , shall be prohibited ... ”", "The relevant extracts from the General Reports prepared by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) read as follows :", "“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG ’s mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps significantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .", "A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that CARDINAL should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...", "Specific mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather ...", "Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...", "The ORG would add that it is particularly concerned when it finds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners . ”", "“ CARDINAL . Health care services for persons deprived of their liberty is a subject of direct relevance to the ORG ’s mandate . An inadequate level of health care can lead rapidly to situations falling within the scope of the term \" inhuman and degrading treatment \" . Further , the health care service in a given establishment can potentially play an important role in combating the infliction of ill - treatment , both in that establishment and elsewhere ( in particular in police establishments ) . Moreover , it is well placed to make a positive impact on the overall quality of life in the establishment within which it operates ...", "While in custody , prisoners should be able to have access to a doctor at any time , irrespective of their detention regime [ ... ] The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay .", "Prisoners should be able to approach the health care service on a confidential basis , for example , by means of a message in a sealed envelope . Further , prison officers should not seek to screen requests to consult a doctor .", "A prison ’s health care service should at least be able to provide regular out - patient consultations and emergency treatment ( of course , in addition there may often be a hospital - type unit with beds ) . The services of a qualified dentist should be available to every prisoner . Further , prison doctors should be able to call upon the services of specialists .", "As regards emergency treatment , a doctor should always be on call . Further , someone competent to provide first aid should always be present on prison LOC , preferably someone with a recognised nursing qualification .", "Out - patient treatment should be supervised , as appropriate , by health care staff ; in many cases it is not sufficient for the provision of follow - up care to depend upon the initiative being taken by the prisoner .", "The direct support of a fully - equipped hospital service should be available , in either a civil or prison hospital ...", "A prison health care service should be able to provide medical treatment and nursing care , as well as appropriate diets , physiotherapy , rehabilitation or any other necessary special facility , in conditions comparable to those enjoyed by patients in the outside community . Provision in terms of medical , nursing and technical staff , as well as LOC , installations and equipment , should be geared accordingly ...", "A medical file should be compiled for each patient , containing diagnostic information as well as an ongoing record of the patient ’s evolution and of any special examinations he has undergone . In the event of a transfer , the file should be forwarded to the doctors in the receiving establishment .", "Further , DATE registers should be kept by health care teams , in which particular incidents relating to the patients should be mentioned . Such registers are useful in that they provide an overall view of the health care situation in the prison , at the same time as highlighting specific problems which may arise ...", "It lies with prison health care services - as appropriate acting in conjunction with other authorities - to supervise catering arrangements ( quantity , quality , preparation and distribution of food ) and conditions of hygiene ( cleanliness of clothing and bedding ; access to running water ; sanitary installations ) as well as the heating , lighting and ventilation of cells . Work and outdoor exercise arrangements should also be taken into consideration .", "Insalubrity , overcrowding , prolonged isolation and inactivity may necessitate either medical assistance for an individual prisoner or general medical action vis - à - vis the responsible authority . ”", "“ ...", "As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG ’s mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .", "The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”", "“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...", "In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions .", "The ORG frequently encounters devices , such as metal shutters , slats , or plates fitted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that specific security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ; moreover , the absence of these elements generates conditions favourable to the spread of diseases and in particular tuberculosis ... ”", "Concerning overcrowding , the ORG indicates the following in the document named “ ORG standards ” ( ORG ( DATE ) CARDINAL ) :", "“ CARDINAL . The ORG would add that it is particularly concerned when it finds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners .... ”", "On DATE ORG Recommendation No . R ( CARDINAL ) CARDINAL concerning prison overcrowding and prison population inflation , which provides in particular as follows :", "“ Considering that prison overcrowding and prison population growth represent a major challenge to prison administrations and the criminal justice system as a whole , both in terms of human rights and of the efficient management of penal institutions ;", "Considering that the efficient management of the prison population is contingent on such matters as the overall crime situation , priorities in crime control , the range of penalties available on the law books , the severity of the sentences imposed , the frequency of use of community sanctions and measures , the use of pre - trial detention , the effectiveness and efficiency of criminal justice agencies and not least public attitudes towards crime and punishment ...", "Recommends that governments of member states :", "- take all appropriate measures , when reviewing their legislation and practice in relation to prison overcrowding and prison population inflation , to apply the principles set out in the appendix to this recommendation ...", "I. Basic principles", "Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only , where the seriousness of the offence would make any other sanction or measure clearly inadequate .", "NORP The extension of the prison estate should rather be an exceptional measure , as it is generally unlikely to offer a lasting solution to the problem of overcrowding . Countries whose prison capacity may be sufficient in overall terms but poorly adapted to local needs should try to achieve a more rational distribution of prison capacity ...", "II . Coping with a shortage of prison places", "NORP In order to avoid excessive levels of overcrowding a maximum capacity for penal institutions should be set .", "Where conditions of overcrowding occur , special emphasis should be placed on the precepts of human dignity , the commitment of prison administrations to apply humane and positive treatment , the full recognition of staff roles and effective modern management approaches . In conformity with ORG , particular attention should be paid to the amount of space available to prisoners , to hygiene and sanitation , to the provision of sufficient and suitably prepared and presented food , to prisoners’ health care and to the opportunity for outdoor exercise .", "NORP In order to counteract some of the negative consequences of prison overcrowding , contacts of inmates with their families should be facilitated to the extent possible and maximum use of support from the community should be made ... ”", "On DATE ORG Recommendation Rec(CARDINAL)CARDINAL to member GPE on ORG , which replaced Recommendation No . R ( CARDINAL ) CARDINAL on ORG accounting for the developments which had occurred in penal policy , sentencing practice and the overall management of prisons in LOC . The amended NORP Prison Rules lay down the following relevant guidelines :", "“ CARDINAL . All persons deprived of their liberty shall be treated with respect for their human rights .", "Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody .", "Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed .", "Prison conditions that infringe ORG human rights are not justified by lack of resources .", "...", "ORG apply to persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction . ”", "“ CARDINAL . The accommodation provided for prisoners , and in particular all sleeping accommodation , shall respect human dignity and , as far as possible , privacy , and meet the requirements of health and hygiene , due regard being paid to climatic conditions and especially to floor space , cubic content of air , lighting , heating and ventilation .", "In all buildings where prisoners are required to live , work or congregate :", "a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system ;", "b. artificial light shall satisfy recognised technical standards ; and", "c. there shall be an alarm system that enables prisoners to contact the staff without delay .", "National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons .", "Prisoners shall normally be accommodated during TIME in individual cells except where it is preferable for them to share sleeping accommodation .", "Prisoners shall have ready access to sanitary facilities that are hygienic and respect privacy .", "Adequate facilities shall be provided so that every prisoner may have a bath or shower , at a temperature suitable to the climate , if possible DATE but at least twice DATE ( or more frequently if necessary ) in the interest of general hygiene .", "Prisoners shall be provided with a nutritious diet that takes into account their age , health , physical condition , religion , culture and the nature of their work .", "There shall be CARDINAL meals a day with reasonable intervals between them .", "Clean drinking water shall be available to prisoners at all times .", "Every prisoner shall be provided with the opportunity of TIME of exercise every day in the open air , if the weather permits .", "When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise . ”", "“ CARDINAL ORG services in prison shall be organised in close relation with the general health administration of the community or nation .", "CARDINAL ORG policy in prisons shall be integrated into , and compatible with , national health policy .", "CARDINAL Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation .", "CARDINAL ORG services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer .", "CARDINAL NORP All necessary medical , surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose .", "CARDINAL Every prison shall have the services of CARDINAL qualified general medical practitioner .", "CARDINAL Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency .", "CARDINAL.CARDINAL Where prisons do not have a full - time medical practitioner , a part - time medical practitioner shall visit regularly .", "CARDINAL Every prison shall have personnel suitably trained in health care .", "CARDINAL NORP The services of qualified dentists and opticians shall be available to every prisoner .", "CARDINAL NORP The medical practitioner or a qualified nurse reporting to such a medical practitioner shall see every prisoner as soon as possible after admission , and shall examine them unless this is obviously unnecessary .", "CARDINAL The medical practitioner or a qualified nurse reporting to such a medical practitioner shall examine the prisoner if requested at release , and shall otherwise examine prisoners whenever necessary .", "CARDINAL When examining a prisoner the medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to :", "a. observing the normal rules of medical confidentiality ;", "b. diagnosing physical or mental illness and taking all measures necessary for its treatment and for the continuation of existing medical treatment ;", "c. recording and reporting to the relevant authorities any sign or indication that prisoners may have been treated violently ;", "d. dealing with withdrawal symptoms resulting from use of drugs , medication or alcohol ;", "e. identifying any psychological or other stress brought on by the fact of deprivation of liberty ;", "PERSON isolating prisoners suspected of infectious or contagious conditions for the period of infection and providing them with proper treatment ;", "g. ensuring that prisoners carrying the HIV virus are not isolated for that reason alone ;", "h. noting physical or mental defects that might impede resettlement after release ;", "i. determining the fitness of each prisoner to work and to exercise ; and", "PERSON making arrangements with community agencies for the continuation of any necessary medical and psychiatric treatment after release , if prisoners give their consent to such arrangements .", "CARDINAL NORP The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see , under the conditions and with a frequency consistent with health care standards in the community , all sick prisoners , all who report illness or injury and any prisoner to whom attention is specially directed .", "CARDINAL NORP The medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to the health of prisoners held under conditions of solitary confinement , shall visit such prisoners DATE , and shall provide them with prompt medical assistance and treatment at the request of such prisoners or the prison staff .", "CARDINAL NORP The medical practitioner shall report to the director whenever it is considered that a prisoner ’s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment , including conditions of solitary confinement .", "The medical practitioner or other competent authority shall regularly inspect , collect information by other means if appropriate , and advise the director upon :", "a. the quantity , quality , preparation and serving of food and water ;", "b. the hygiene and cleanliness of the institution and prisoners ;", "c. the sanitation , heating , lighting and ventilation of the institution ; and", "d. the suitability and cleanliness of the ORG clothing and bedding .", "CARDINAL NORP The director shall consider the reports and advice that the medical practitioner or other competent authority submits according to LAW and DATE and , when in agreement with the recommendations made , shall take immediate steps to implement them .", "CARDINAL If the recommendations of the medical practitioner are not within the director ’s competence or if the director does not agree with them , the director shall immediately submit the advice of the medical practitioner and a personal report to higher authority .", "CARDINAL Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals , when such treatment is not available in prison .", "CARDINAL Where a prison service has its own hospital facilities , they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment . ”", "The ORG visited GPE in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE and carried out periodic visits to various detention establishments , including the prisons of GPE , GPE - PERSON and its hospital , PERSON , GPE , PERSON , PERSON and Ploieşti .", "Overcrowding of prisons and lack of reasonable hygiene facilities at the national level were constantly highlighted by the ORG , which also concluded that in the light of the deplorable material conditions of detention in some of the cells of the establishments visited , the conditions of detention could be qualified as inhuman and degrading .", "In the report published on DATE ( ORG ( DATE ) CARDINAL ) following a visit from DATE to a number of detention facilities , including the prisons of GPE - Jilava , PERSON , GPE and Ploieşti , the ORG found that severe overcrowding and lack of reasonable hygiene facilities remained a constant problem , not only in the establishments visited but at national level , and that this had remained the case since its first visit to GPE in DATE .", "Moreover , the ORG found in respect of the prisons visited , in particular the prisons of Bacău and Ploieşti , a lack of access to natural light , bad air ventilation , particularly dirty mattresses , lack of activities outside the cells , bad quality food and poor hygiene in the kitchens , and widespread non­observance of the daily TIME walk . The conditions in Bucharest­Jilava Prison , in particular the section for dangerous detainees , were qualified as appalling by the ORG , which noted that the prison administration itself had acknowledged that material conditions of detention throughout the prison were extremely poor . The ORG declared itself particularly concerned about the constant lack of beds and the fact that in all the prisons visited the personal space per detainee was CARDINAL square metres and sometimes even QUANTITY . While welcoming the changes introduced in domestic legislation providing for personal space of QUANTITY for each prisoner , the ORG recommended , inter alia , that necessary measures be taken to ensure compliance with this requirement . The ORG found the GPE access to medical treatment to be insufficient , including with respect to dental care : lack of adequate staff , long waiting periods for consultation , inadequate consultation procedures . The ORG formulated a number of recommendations , including increased use of the possibility to grant , in due time , a stay of execution for health reasons .", "NORP In a report following his visit to GPE in DATE the Commissioner for Human Rights made the following comments on the situation in prisons :", "“ CARDINAL . However , the prison service is facing serious problems , in particular the dilapidation of many of the prisons and , above all , chronic overcrowding . [ ... ] Thus the overall occupancy level for prisons is PERCENT and there is a manifest shortage of beds . My visit to PERSON prison , which has an occupancy level of PERCENT and where CARDINAL prisoners are regularly held in cells designed for CARDINAL , clearly illustrated the situation . I was all the more concerned to learn that some prisons had even higher occupancy levels , rising to PERCENT .", "Being aware of the problem , the authorities keep the highest rates of overcrowding for open prisons , where the prisoners work during DATE and are therefore not continually faced with the acute lack of space . However , this solution can not be other than very temporary . The fact that several prisoners received pardons during my visit demonstrates that changes in prison policy are both possible and expected . Given that , for economic reasons , there are no plans to build new prisons at the moment I would urge the authorities to develop a system of alternative penalties , effective management of release on parole and a judicial policy requiring moderation in the use of detention . I welcome the efforts of ORG in this direction and invite it to complete these reforms as soon as possible [ ... ] . ”", "In his follow - up report on GPE ( DATE ) on the assessment of the progress made in implementing his earlier recommendations , published on DATE , ORG for Human Rights made the following comments on the situation in prisons :", "“ CARDINAL . In spite of the efforts made to improve prisons , recent studies carried out by the NORP authorities show that the situation remains difficult . In DATE , out of CARDINAL prisons , CARDINAL had very good conditions , CARDINAL had good conditions , CARDINAL had satisfactory conditions and CARDINAL had particularly difficult conditions , including PERSON prison , near GPE , which was visited by the members of ORG .", "Prison over - population continues to be a persistent problem in GPE , although the number of prisoners has fallen from CARDINAL in DATE to CARDINAL at DATE . On average , the rate of overpopulation has fallen significantly and is now at an acceptable level of PERCENT . However , certain prisons still have an intolerable overpopulation [ In particular PERSON prison , which had a rate of overpopulation of PERCENT on DATE ] . From a general point of view , living conditions in prison have improved but still require further improvement , owing in particular to the lack of resources allocated to them .", "As well as the lack of means , there is a manifest lack of prison staff . GPE has on average CARDINAL warder for CARDINAL prisoners , and even CARDINAL for CARDINAL prisoners in certain prisons , whereas the average in LOC is closer to CARDINAL warder for CARDINAL prisoners . That shortage means that warders on duty have to increase their working time and are reduced to a purely supervisory role , and it may have negative consequences on their actions or interventions . Lastly , the lack of staff represents a significant obstacle to the normalisation of prison life and exacerbates the shortage of equipment and the problems associated with overpopulation , and severely limits work towards reintegration .", "Nonetheless , a significant process of modernisation has been initiated . Among the objectives of the Strategy for the reform of the judicial system DATE , mention should be made of the intention to build new prisons and to modernise CARDINAL centres . Over DATE , CARDINAL new places were created .", "In this process for the improvement of living conditions in prisons , mention may be made of the modernisation of the young offenders’ centre in GPE and the creation of the centres in GPE and PERSON , the construction at NORP prison of a hospital specialising in surgery , and the provision of hot and cold water and installation of central heating in all prisons . Also noteworthy , finally , is the transparency of ORG , which publishes detailed statistics on the prison situation on its internet site .", "As regards alternatives to detention , the new Criminal Code , adopted in DATE introduced the possibility of an open or semi - open prison regime for petty offences . It also provides for options other than imprisonment for young offenders and offers wider possibilities for the application of penalties .", "The Commissioner ’s team visited PERSON and NORP prisons , both near GPE . These CARDINAL prisons to a large extent reflect the situation in prisons in GPE at the time of the visit .", "At the time of the visit , ORG prison had CARDINAL prisoners , including CARDINAL minors , for CARDINAL places . The different wings of ORG prison have recently been renovated and provide reasonable living conditions . However , a problem of overcrowding affected the women ’s section , where CARDINAL women were being held in cells with CARDINAL beds . There are CARDINAL reasons for this overcrowding . First , women ’s prison sections are rare in the GPE area and prisoners wish to or must remain in ORG ( in order to be near their families , or because the proceedings are still pending , etc . ) ; and , second , the women ’s wing was reduced by CARDINAL in order to build the new prison hospital .", "Rahova prison hospital admits and treats prisoners from the whole country . It has a very modern operating facility and the latest generation of medical equipment . As the Director of the Prison Administration states , the construction of this facility required a significant but essential financial effort , as prison medicine was incomplete and inappropriate . Prisoners are now able to receive proper care , sometimes in better conditions than in some civil hospitals .", "By comparison with the positive example found in ORG , PERSON prison appeared , at the time of the visit , to be in an alarming situation . Essentially a transit prison and a preventive detention prison , it had CARDINAL prisoners for CARDINAL places , and was CARDINAL of the most overcrowded prisons in GPE . Conditions were deplorable from any point of view , as the Director of NORP Prisons acknowledged . All the installations were obsolete , the windows incapable of keeping out the cold and the furniture from another era . Over - population meant that in some cases CARDINAL prisoners had to live in cells designed for CARDINAL or CARDINAL prisoners .", "Conclusions", "NORP The Commissioner emphasises the efforts made and the investments carried out to improve prison conditions and welcomes the adoption of new alternative measures . There is a clear intention to increase available prison places in order to reduce prison overpopulation . The programme of bringing prisons into line with the standards of ORG must be continued . However , significant difficulties remain and an urgent solution must be envisaged for the most obsolete and the most overcrowded prisons , such as PERSON prison . ”" ]

[ "3" ]

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[ "The applicants , husband and wife , were born in DATE and DATE respectively and live in GPE .", "At QUANTITY on DATE ORG , the wife of PERSON ( the applicants’ son ) and PERSON , a family acquaintance , informed the police that PERSON had committed suicide by hanging himself in the bathroom in his flat .", "Having arrived at ORG flat , the police examined the scene of the incident and drew up a report , noting that by the time of their arrival PERSON ’s body was lying on the bathroom floor , fully dressed in outdoor clothes without any recent damage to them . He had no visible injuries , except strangulation marks on his neck and an abrasion on his hand . The strangulation marks were uneven ( CARDINAL on the right side and CARDINAL on the left ) and particularly visible on the front of the neck . A self - tightening loop of grey synthetic cord was found near the body and another fragment of analogous cord was tied to the middle of a horizontal water supply pipe QUANTITY above the floor . The flat was in good order and no signs of any struggle could be found either on the body or anywhere in the flat . Following the examination , the police took away the cord .", "On DATE the police also took written statements from GPE ( the family acquaintance ) and PERSON ( a neighbour whose telephone had been used to call the police ) . PERSON told the police that he knew PERSON and his family and lived in the neighbourhood . At QUANTITY N.K. ( ORG wife ) had rung his door and requested his help in breaking into her locked bathroom . She explained that her husband had come home drunk at TIME , had locked himself in the bathroom and had been crying loudly . She had attempted to break the door open with an axe , but to no avail . PERSON had then followed ORG to her flat , broken open the bathroom door with a chisel , and had seen PERSON suspended by his neck from the pipe . PERSON and PERSON had cut the cord and had placed ORG body on the floor . They had called the police and an ambulance and had attempted to resuscitate PERSON However , PERSON had already died . PERSON ( the neighbour ) stated to the police that at TIME had asked him to call an ambulance , as her husband had hung himself . He had entered the flat at ORG ’s invitation and had seen the body already placed on the floor .", "Also on DATE , an autopsy of PERSON ’s body took place . According to the resulting findings , he died of mechanical asphyxia caused by hanging .", "On DATE further results of the forensic examination of PERSON ’s body were received , according to which PERSON had been moderately intoxicated by alcohol ( PERCENT ) at the time of his death . The expert report stated that there had been no other injuries or abnormalities on his body .", "On DATE PERSON ( PERSON wife ) stated that shortly before his death her husband had shared with her that he had a lover , who had fallen pregnant , and that he was worried about the debt owed by his father to company S. On DATE of the incident , he had come home at TIME with FAC . , an acquaintance . They had both been rather drunk . After a little while , ORG , GPE and PERSON ( their DATE daughter ) had accompanied D.Sh . out and had returned home . The daughter had gone to bed , while PERSON and PERSON had been drinking coffee in the kitchen until TIME At some point in time , they had been interrupted by a visit from ORG , another acquaintance , who had been looking for FAC . , and , having learned that he had already gone , ORG had left immediately . Subsequently , PERSON had gone to the bathroom . Worried about his long absence , ORG had called for him and had received no answer . She had attempted to break into the bathroom with a kitchen axe , but had been unsuccessful . Thinking that PERSON may have fallen asleep , she had gone to get the help of PERSON , who lived nearby and who was well respected by her husband .", "On DATE the investigative department of ORG in PERSON ( “ ORG Office ” ) decided not to institute criminal proceedings into the circumstances of PERSON ’s death , having found it sufficiently established that he had deliberately taken his own life .", "On DATE the applicants appealed to ORG requesting further investigation . They noted , in particular , that they had suspected ORG , allegedly their son ’s wife ’s lover and who had visited the family shortly before PERSON ’s death , of having strangled PERSON , potentially in connection with a property dispute between the spouses , who had been planning to divorce . They drew the prosecutor ’s attention to certain facts which appeared peculiar to them : in particular , PERSON ’s being dressed in a jacket after having allegedly been home for TIME ; contradictory evidence as to the existence of an abrasion ( possibly from the cord ) on PERSON ’s hand ; and the failure of the investigative authorities to examine the cord and to take away the axe and the chisel . Subsequently , on many occasions throughout the investigation , the applicants continued to suggest that PERSON could have been intentionally strangled with the cord and then placed in the bathroom , the hanging being imitated . Alternatively , he could have been poisoned by narcotic or psychotropic substances and incited to commit suicide . They alleged that the persons potentially implicated in the murder included his wife , her parents , and her lover ( FAC ) and subsequently GPE , a neighbour who had been on bad terms with PERSON", "On DATE ORG ( “ ORG Office ” ) quashed the decision of DATE and ordered additional inquiry . It reprimanded ORG , in particular , for not having served the applicants with its decision of CARDINAL DATE and not letting them access the inquiry materials . They further instructed the investigators , in particular , to question : the applicants in order to verify the probability of the applicants’ assertions concerning the murder being correct ; the CARDINAL acquaintances , who visited the family before PERSON ’s death ( PERSON . and ORG ) ; relatives of ORG ; and CARDINAL neighbours who had acted as lay witnesses during the examination of the scene of the incident .", "On DATE a new decision not to institute criminal proceedings was taken , the text of which did not reflect whether ORG Office ’s instructions had been carried out .", "On DATE ORG annulled this decision , having found that the investigation had been perfunctory . On DATE it further addressed a letter to ORG , noting that the case - file documents had not been kept in order , as required by the applicable document processing rules , which also stipulated procedures regarding stitching and numbering . In addition , it gave detailed instructions as to further investigative actions to be taken . It ordered , in particular , that : the cord be examined and where PERSON had taken it from be determined ; PERSON ’s colleagues be questioned concerning his moods and affairs ; his wife ’s allegations about his involvement with his father ’s alleged debts and his alleged lover ’s pregnancy be investigated ; why PERSON had been wearing a jacket be determined ; and whether PERSON wife and ORG had had a love affair and whether this could have played a role in PERSON ’s death be assessed .", "On DATE ORG took a fresh decision not to institute criminal proceedings . It noted , in particular , that PERSON wife had stated during additional questioning of her that she had never had an affair with ORG and that there had been no conflicts in the family in this respect , while PERSON wearing of a jacket was explained by his regular habit of dining in outdoor clothes . The prosecutor ’s office further referred to a statement of ORG minor daughter ( PERSON ) confirming that FAC , who had indeed visited them during TIME , had left the flat long before her father ’s death . In addition , it found that the first applicant had not had financial problems involving his son in any way .", "On DATE ORG annulled this decision , having found that its instructions had not been duly carried out .", "On DATE the investigator , PERSON , reported to ORG that it had not been possible to examine the cord , as , contrary to his expectations , for unexplained reasons it was absent from the safe and could not be found anywhere .", "On DATE a fresh decision refusing to institute criminal proceedings was taken .", "On DATE the applicants appealed to court . They noted that the investigation had failed to examine whether the pipe had contained any friction marks attesting to the suspension of a heavy , jerking body from it and whether the bathroom door could have been locked from the outside after the dead body had been placed within it . It had further failed to reconcile contradictions between various data concerning an abrasion on PERSON hand . In addition , the applicants alleged that their granddaughter had initially told them that FAC ( ORG ’s alleged lover ) and PERSON ( a neighbour , with whom PERSON had allegedly been on bad terms ) had been in their house shortly before PERSON ’s death , and that she had heard sounds of an argument , followed by a cry and then the sound of running water .", "On DATE the applicants amended their appeal , submitting that they had been unable to present full arguments earlier , having been denied access to the case file . They further pinpointed various contradictions between ORG ’s , ORG , ORG and Y.M. ’s statements and suggested that they had earlier seen a cord , similar to that by which PERSON had been strangled , near ORG ’s car . They further noted that the case file had not contained their son ’s wife ’s and their granddaughter ’s statements which had been given shortly after the incident , and that the investigation had baselessly affirmed that there were no traces of narcotic or psychotropic substances in PERSON ’s blood , while in fact this point had never been examined . They further contended that the information concerning an abrasion on PERSON ’s hand , together with the finding that there were CARDINAL strangulation marks on CARDINAL side and CARDINAL on the other side of PERSON ’s neck , could signify that PERSON had attempted to defend himself from an intruder trying to strangle him . The applicants also alleged that they had been called on the phone and threatened by strangers , and that the people involved in their son ’s death could have included his wife , her lover and her parents , and PERSON ( a neighbour ) .", "On DATE ORG in PERSON annulled the decision of DATE . It noted , in particular , that ORG had failed to examine all relevant facts and collect evidence in accordance with the instructions of ORG , and it remitted the case for additional inquiry .", "On DATE ORG took a fresh decision not to institute criminal proceedings , relying , in essence , on the same arguments as in the previous decisions .", "On DATE the ORG annulled this decision , noting that no additional actions had been carried out .", "Following this decision , in DATE the investigative authorities carried out additional questioning of various witnesses , including PERSON daughter ( PERSON ) , who confirmed her mother ’s statements , and PERSON ( the acquaintance , who helped to open the bathroom door and take PERSON off the pipe ) , who noted that when he had entered the bathroom , PERSON had been suspended from the pipe , his legs QUANTITY above the floor .", "On DATE , DATE and DATE ORG took fresh decisions not to institute criminal proceedings , all of them subsequently being quashed .", "On DATE ORG annulled the lastmentioned decision , having found that the investigation was incomplete . In particular , it noted that there were still contradictory sources of evidence with regard to the hand injury . The case was transferred to ORG for further handling .", "On DATE ORG again decided not to institute criminal proceedings . However , the applicants continued to lodge various complaints with the authorities , including complaints that they had been unlawfully denied access to the case file and that the investigation had failed to properly examine an audio - recording of a conversation they had had with their granddaughter and to incorporate it into the body of evidence .", "NORP In response to their complaints , some additional actions were carried out , including : a request that PERSON wife to allow the re - examination of her home , which she refused on the basis that she had already renovated the bathroom ; and an additional questioning of the medical expert , who had recorded that PERSON had not had any injuries on his hand . The authorities further noted that the questioning of another expert witness involved was no longer possible , as that expert witness had died .", "On DATE ORG refused an application by the applicants for reopening of the investigation , having informed them , in particular , that no statements by PERSON wife and daugther were missing from the case file , as they had first been questioned on DATE and DATE respectively . It also noted that in accordance with LAW of DATE , the cord had been deliberately destroyed .", "The applicants appealed to the courts .", "On DATE the Ordzhonikidzevskiy ORG in GPE quashed the preceding decision not to institute criminal proceedings . It noted , in particular , that the investigation had been onesided ; the authorities focusing entirely on whether the explanation of suicide was probable . There had been no comprehensive and coherent analysis of the probability or improbability of the ORG allegation of imitated hanging preceded by intentional strangling . In particular , the investigative authorities had failed to establish the manner of PERSON ’s hanging and had not reconciled various contradictions in the evidence in this respect . Information which had not been uncovered included details of the position of PERSON ’s body ; the capacity of the water supply pipe to withstand the weight of his body being suspended from it , particularly with regard being had to its sudden jerk from the bathtub edge ; PERSON ’s technical ability to prepare and complete the hanging , given the level of alcohol in his blood ; and the nature and origins of the abrasion on his hand . The court also noted that the authorities had negligently failed to take away and examine the chisel and the axe .", "On DATE TIME . , CARDINAL of the lay witnesses who had signed the report of the examination of the scene on DATE , refused to report for questioning , alleging , in particular , that he was very ill and could no longer recall the relevant details .", "On DATE a fresh decision not to institute criminal proceedings was taken .", "On DATE the ORG quashed the decision , having found that its previous instructions had remained largely not followed and that the manner of PERSON hanging had not been established .", "On DATE a new decision not to institute criminal proceedings was taken . As noted in that decision , it had been no longer possible to examine relevant physical evidence , as the bathroom had been renovated and such objects as the axe , the chisel , and the cord had not been available . However , regard being had to the available materials , particularly to the witness statements , it was found that it would not have been possible to place a strangled body into the bathroom and lock the door from the outside . Rather than jumping from the bathtub edge , PERSON had either leaned against it or touched the floor with his feet , his incomplete hanging explaining the distribution of his weight , which would have been able to be supported by the water supply pipe . His alcohol intoxication being moderate , he ought not to have lost his judgment to the point of not being able to hang himself .", "On DATE the ORG rejected the first applicant ’s appeal against this decision , having noted that he had lodged it outside the statutory time - limit without having a valid justification for his failure to meet the deadline . In any event , the court held that the investigative authorities had used up all the means reasonably available to them to examine the situation and that it was not likely that any further investigation would bring new results or secure evidence in support of the ORG allegation that PERSON could have been murdered .", "NORP The parties did not inform the ORG whether this decision was appealed any further .", "The relevant provisions of the LAW and LAW can be found in the judgment in the case of PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) ." ]

[ "2" ]

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[ "The applicant , ORG , is a NORP national who was born in DATE and lives in GPE , GPE region , GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "By decree of CARDINAL DATE the Kryvyy Rig City Executive Committee ordered all the buildings in the specified area , including the applicant ’s house , to be demolished . ORG also transferred the titles to the plots of land under these buildings and adjacent thereto to FAC ( “ the Company ” ) , a publicly owned company at that time .", "In the period DATE the Company , which by that time had been reorganised into a joint stock company PERCENT of whose shares belonged to the ORG ( ORG “ LOC гірничо-збагачувальний комбінат ” ) , implemented the above decree and demolished the applicant ’s house .", "On DATE ORG ( Господарський суд ORG області , “ the ORG ” ) instituted insolvency proceedings against the Company .", "By a judgment of DATE the NORP ORG of Kryvyy Rig ( ORG районний суд м. ORG ; “ the ORG ” ) allowed the applicant ’s claim for damages and awarded her the total amount of CARDINAL NORP hryvnias ( ORG ) ( MONEY ( ORG ) at the material time ) , to be paid by ORG .", "By order of CARDINAL DATE the Cabinet of Ministers of GPE approved the privatisation of the Company and instructed the relevant authorities to make the necessary arrangements . By DATE , according to the Government , the ORG ’s share in the ORG had been sold .", "On DATE , after the judgment had become final , ORG instituted enforcement proceedings .", "On DATE ORG suspended the enforcement proceedings in view of the insolvency proceedings pending against the Company before ORG .", "Subsequently the insolvency proceedings against the Company were terminated and reopened , and ORG resumed and suspended the enforcement proceedings accordingly . Apparently , the applicant did not try to register as a creditor in any of the insolvency proceedings against the debtor Company .", "On DATE ORG adopted an amicable agreement between the creditors and the Company , under which the creditors’ claims against the Company , including the claims of those who were not registered in the insolvency proceedings but sought payment of the debts within the enforcement proceedings only , were deemed to be paid off . Accordingly , the insolvency proceedings against the Company were terminated .", "On DATE ORG terminated the enforcement proceedings relating to the judgment in the applicant ’s favour , referring to the amicable agreement adopted on DATE .", "On DATE the applicant challenged the bailiff ’s decision of CARDINAL DATE before ORG . On DATE the court dismissed her complaint as time - barred . The applicant did not appeal against the latter decision .", "On DATE ORG terminated the amicable agreement because of the ORG ’s failure to comply with its terms , and resumed the insolvency proceedings against the Company .", "On DATE the applicant instituted proceedings in ORG against ORG , challenging the decision of DATE . On DATE the court dismissed the applicant ’s claim because of the applicant ’s repeated failure to appear before the court . The applicant did not appeal against the latter decision .", "On DATE ORG , having resumed the enforcement proceedings , suspended them in view of the insolvency proceedings against the Company .", "The judgment of DATE remains unenforced .", "The relevant domestic law on enforcement proceedings is summarised in the case of ORG v. GPE ( no . PERSON , § § DATE , DATE ) .", "The relevant provisions of the Restoration of Solvency and LAW of DATE are summarised in the case of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) . In addition , the LAW defines a creditor as “ a legal or natural person who has a pecuniary claim against the debtor which is corroborated by documents in accordance with the prescribed procedure ” ." ]

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[ "Mr GPE , Mr NORP and PERSON , all NORP citizens , were born in DATE and DATE respectively . Mr ORG died on DATE .", "ORG In DATE , in the course of routine investigations into other matters , the police came into possession of a number of video films which were made during sado - masochistic encounters involving the applicants and CARDINAL other homosexual men . As a result the applicants , with several other men , were charged with a series of offences , including assault and wounding , relating to sado - masochistic activities that had taken place over a DATE period . CARDINAL of the charges involved a defendant who was not yet DATE - the age of consent to male homosexual practices at the time . Although the instances of assault were very numerous , the prosecution limited the counts to a small number of exemplary charges .", "The acts consisted in the main of maltreatment of the genitalia ( with , for example , hot wax , sandpaper , fish hooks and needles ) and ritualistic beatings either with the assailant ’s bare hands or a variety of implements , including stinging nettles , spiked belts and a cat - o’-nine tails . There were instances of branding and infliction of injuries which resulted in the flow of blood and which left scarring .", "These activities were consensual and were conducted in private for no apparent purpose other than the achievement of sexual gratification . The infliction of pain was subject to certain rules including the provision of a code word to be used by any \" victim \" to stop an \" assault \" , and did not lead to any instances of infection , permanent injury or the need for medical attention .", "ORG The activities took place at a number of locations , including rooms equipped as torture chambers . Video cameras were used to record events and the tapes copied and distributed amongst members of the group . The prosecution was largely based on the contents of those videotapes . There was no suggestion that the tapes had been sold or used other than by members of the group .", "ORG The applicants pleaded guilty to the assault charges after the trial judge ruled that they could not rely on the consent of the \" victims \" as an answer to the prosecution case .", "ORG On DATE , the defendants were convicted and sentenced to terms of imprisonment . On passing sentence , the trial judge commented : \" ... the unlawful conduct now before the court would be dealt with equally in the prosecution of heterosexuals or bisexuals if carried out by them . The homosexuality of the defendants is only the background against which the case must be viewed . \"", "Mr ORG was sentenced to imprisonment for DATE and DATE . This included a sentence of CARDINAL years’ imprisonment for aiding and abetting keeping a disorderly house ( see paragraph CARDINAL below ) and a consecutive term of CARDINAL months’ imprisonment for possession of an indecent photograph of a child . Under section CARDINAL of the ORG against LAW ( \" LAW \" - see paragraph CARDINAL below ) , Mr ORG also received concurrent sentences of CARDINAL months’ imprisonment in respect of various counts of assault occasioning actual bodily harm and aiding and abetting assault occasioning actual bodily harm .", "Mr NORP was sentenced to imprisonment for DATE . He received CARDINAL years’ imprisonment for aiding and abetting unlawful wounding - contrary to section CARDINAL of LAW ( see paragraph CARDINAL below ) - , and a further CARDINAL months’ imprisonment for assault occasioning actual bodily harm , aiding and abetting the same offence , and unlawful wounding .", "Mr PERSON was sentenced to imprisonment for DATE and DATE . He received CARDINAL months’ imprisonment for aiding and abetting assault occasioning actual bodily harm , a further CARDINAL months’ imprisonment for assault occasioning actual bodily harm , and a further CARDINAL months’ imprisonment for further assaults occasioning actual bodily harm .", "ORG The applicants appealed against conviction and sentence .", "ORG On DATE , ORG , dismissed the appeals against conviction . Since , however , the court found that the applicants did not appreciate that their actions in inflicting injuries were criminal , reduced sentences were imposed .", "ORG Mr ORG ’s sentence was thus reduced to CARDINAL months’ imprisonment as regards the charge of aiding and abetting keeping a disorderly house . This sentence was to run concurrently with another CARDINAL months’ sentence in respect of the various counts of assault and consecutively with CARDINAL months’ imprisonment for the possession of an indecent photograph of a child , totalling CARDINAL years’ imprisonment .", "ORG Mr NORP ’s and PERSON sentences were reduced to CARDINAL months’ and CARDINAL months’ imprisonment respectively .", "ORG The applicants appealed to ORG on the following certified point of law of public importance :", "\" Where A wounds or assaults B occasioning him actual bodily harm in the course of a sado - masochistic encounter , does the prosecution have to prove lack of consent on the part of B before they can establish A ’s guilt under LAW or section CARDINAL of LAW ? \"", "ORG On DATE , the appeal , known as the case of NORP v. PERSON ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) , was dismissed by a majority of ORG , CARDINAL of the CARDINAL law lords dissenting .", "Lord Templeman , in the majority , held after reviewing the case - law that :", "\" ... the authorities dealing with the intentional infliction of bodily harm do not establish that consent is a defence to a charge under LAW . They establish that consent is a defence to the infliction of bodily harm in the course of some lawful activities . The question is whether the defence should be extended to the infliction of bodily harm in the course of sado - masochistic encounters ...", "Counsel for the appellants argued that consent should provide a defence ... because it was said every person has a right to deal with his own body as he chooses . I do not consider that this slogan provides a sufficient guide to the policy decision which must now be taken . It is an offence for a person to abuse his own body and mind by taking drugs . Although the law is often broken , the criminal law restrains a practice which is regarded as dangerous and injurious to individuals and which if allowed and extended is harmful to society generally . In any event the appellants in this case did not mutilate their own bodies . They inflicted harm on willing victims ...", "In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty . The violence of sado - masochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims . Such violence is injurious to the participants and unpredictably dangerous . I am not prepared to invent a defence of consent for sado - masochistic encounters which breed and glorify cruelty ...", "Society is entitled and bound to protect itself against a cult of violence . Pleasure derived from the infliction of pain is an evil thing . Cruelty is uncivilised . \"", "Lord GPE of GPE found that :", "\" In my view the line falls properly to be drawn between assault at common law and the offence of assault occasioning actual bodily harm created by LAW , with the result that consent of the victim is no answer to anyone charged with the latter offence ... unless the circumstances fall within CARDINAL of the well known exceptions such as organised sporting contests or games , parental chastisement or reasonable surgery ... the infliction of actual or more serious bodily harm is an unlawful activity to which consent is no answer .", "... Notwithstanding the views which I have come to , I think it right to say something about the submissions that consent to the activity of the appellants would not be injurious to the public interest .", "Considerable emphasis was placed by the appellants on the well - ordered and secret manner in which their activities were conducted and upon the fact that these activities had resulted in no injuries which required medical attention . There was , it was said , no question of proselytising by the appellants . This latter submission sits ill with the following passage in the judgment of the Lord Chief Justice :", "‘ They [ ORG and PERSON ] recruited new participants ; they jointly organised proceedings at the house where much of this activity took place ; where much of the pain inflicting equipment was stored .", "PERSON was a voyeur rather than a sado - masochist , but both he and ORG through their operations at the PERSON premises were responsible in part for the corruption of a youth \" K \" who is now it seems settled into a normal heterosexual relationship.’", "Be that as it may , in considering the public interest it would be wrong to look only at the activities of the appellants alone , there being no suggestion that they and their associates are the only practitioners of homosexual sado - masochism in GPE and GPE . This ORG must therefore consider the possibility that these activities are practised by others and by others who are not so controlled or responsible as the appellants are claiming to be . Without going into details of all the rather curious activities in which the appellants engaged it would appear to be good luck rather than good judgment which has prevented serious injury from occurring . Wounds can easily become septic if not properly treated , the free flow of blood from a person who is HIV - positive or who has AIDS can infect another and an inflicter who is carried away by sexual excitement or by drink or drugs could very easily inflict pain and injury beyond the level to which the receiver had consented . Your Lordships have no information as to whether such situations have occurred in relation to other sadomasochistic practitioners . It was no doubt these dangers which caused PERSON to restrict her propositions in relation to the public interest to the actual rather than the potential result of the activity . In my view such a restriction is quite unjustified . When considering the public interest potential for harm is just as relevant as actual harm . As PERSON said in Coney CARDINAL Queen ’s Bench CARDINAL , CARDINAL :", "‘ There is however abundant authority for saying that no consent can render that innocent which is in fact dangerous.’", "Furthermore , the possibility of proselytisation and corruption of young men is a real danger even in the case of these appellants and the taking of video recordings of such activities suggests that secrecy may not be as strict as the appellants claimed to your Lordships . \"", "Lord PERSON and Lord PERSON of GPE dissented . The first considered that the case should not be treated as falling within the criminal law of violence but rather within the criminal law of private sexual relations . He gave weight to the arguments of the appellants concerning LAW ( article CARDINAL) , finding that the decisions of the NORP authorities clearly favoured the right of the appellants to conduct their private life undisturbed by the criminal law . He considered after an examination of the relevant case - law that it was appropriate for ORG to tackle afresh the question whether public interest required penalising the infliction of this degree of harm in private on a consenting recipient , where the purpose was not profit but gratification of sexual desire . He found no convincing argument on grounds of health ( alleged risk of infections or spread of AIDS ) , the alleged risk of the activities getting out of hand or any possible risk of corruption of youth which might require the offences under LAW to be interpreted as applying to this conduct .", "Lord PERSON of GPE found that as the law stood adults were able to consent to acts done in private which did not result in serious bodily harm . He agreed that it was in the end a matter of policy in an area where social and moral factors were extremely important and where attitudes could change . It was however for the legislature to decide whether such conduct should be brought within the criminal law and not for the courts in the interests of \" paternalism \" to introduce into existing statutory crimes relating to offences against the person concepts which did not properly fit there .", "ORG The proceedings were given widespread press coverage . All the applicants lost their jobs and Mr NORP required extensive psychiatric treatment .", "Section CARDINAL of the Offences against LAW ( \" LAW \" ) provides :", "\" Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person , either with or without any weapon or instrument , ... shall be liable ... to [ imprisonment ] ... for not DATE . \"", "ORG According to the case - law , to constitute a wound for the purposes of the section , the whole skin must be broken , not merely the outer layer or epidermis .", "ORG By section CARDINAL of LAW :", "\" Whosoever shall be convicted on indictment of any assault occasioning actual bodily harm shall be liable ... to imprisonment for not DATE . \"", "Actual bodily harm is defined as \" any hurt or injury calculated to interfere with health or comfort \" ( PERSON , in NORP v. PERSON [ DATE ] CARDINAL Queen ’s Bench Reports CARDINAL , at CARDINAL ) .", "ORG In the case of NORP v. PERSON ( [ DATE ] CARDINAL ORG Bench Reports , at CARDINAL ) , the accused had beaten with a cane a girl for the purposes of sexual gratification , with her consent . PERSON held :", "\" It is an unlawful act to beat another person with such a degree of violence that the infliction of actual bodily harm is a probable consequence , and when such an act is proved , consent is immaterial . \"", "ORG In Attorney - General ’s Reference ( No . CARDINAL of DATE ) ( [ DATE ] ORG Bench Reports , at CARDINAL ) where CARDINAL men quarrelled and decided to fight each other , Lord PERSON in ORG had held :", "\" It is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason . Minor struggles are another matter . So , in our judgment , it is immaterial whether the act occurs in private or in public ; it is an assault if actual bodily harm is intended and/or caused . This means that most fights will be unlawful regardless of consent . Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports , lawful chastisement or correction , reasonable surgical interference , dangerous exhibitions , etc . These apparent exceptions can be justified as involving the exercise of a legal right , in the case of chastisement or correction , or as needed in the public interest , in the other cases . \"", "ORG In PERSON ( [ DATE ] CARDINAL Weekly Law Reports , at CARDINAL ) , where a man had been convicted of assault occasioning actual bodily harm for having branded his initials with a hot knife on his wife ’s buttocks with her consent , ORG , allowed the appeal . In the course of the court ’s judgment , Lord Justice PERSON stated :", "\" ... there is no factual comparison to be made between the instant case and the facts of either PERSON or PERSON : PERSON not only consented to that which the appellant did , she instigated it . There was no aggressive intent on the part of the appellant ...", "...", "We do not think that we are entitled to assume that the method adopted by the appellant and his wife was any more dangerous or painful than tattooing ...", "Consensual activity between husband and wife , in the privacy of the matrimonial home , is not , in our judgment , a proper matter for criminal investigation , let alone criminal prosecution . \"", "ORG Keeping a \" disorderly house \" is a common law offence . A disorderly house is defined as", "\" one which is not regulated by the restraints of morality and which is so conducted as to violate law and good order . There must be an element of ‘ open house’ , but it does not need to be open for the public at large ... Where indecent performances or exhibitions are alleged as rendering the premises a disorderly house , it must be proved that matters are there performed or exhibited of such a character that their performance or exhibition in a place of common resort ( a ) amounts to an outrage of public decency , or ( b ) tends to corrupt or deprave , or ( c ) is otherwise calculated to injure the public interest so as to call for condemnation and punishment \" ( [ DATE ] ORG ’s Criminal Pleading , Evidence and Practice CARDINAL , at CARDINAL ) ." ]

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[ "The applicant was born in DATE and lives in GPE , GPE .", "On DATE the applicant 's wife gave birth to a daughter A.", "NORP In DATE the applicant moved from GPE to ORG in GPE to live with his parents .", "In DATE the applicant 's wife , still residing in GPE , began living together with another man , GPE , and in DATE brought divorce proceedings against the applicant .", "On DATE the competent court dissolved the marriage and awarded custody of their daughter to the mother .", "On DATE the applicant 's former wife married S.A. On DATE they had a child together .", "At DATE or in DATE S.A. instituted proceedings before ORG of GPE ( ORG районный суд г. ORG ) seeking adoption of NORP The court invited the applicant to join the proceedings as a third party and to submit his views on the matter .", "In his reply to the adoption request , filed on DATE , the applicant stated that he was strongly opposed to the adoption . The child already had a father whom she knew . On CARDINAL occasions he had sent money to support her and telegrams for holidays . Due to the distance of GPE from GPE , as well as financial problems , he could not travel often to GPE to visit his daughter . After he had left PERSON , he had seen her in DATE . Furthermore , his former wife and mother - in - law had expressed their displeasure at his contacts with his daughter .", "By a judgment of CARDINAL DATE ORG allowed ORG application . The court observed :", "“ [ ORG ] has lodged with the court an adoption request . In the reasons for his request , he stated that the underage child [ A. ] , born on DATE , is living in GPE ... [ GPE ] has been married to the child 's mother , [ O.A. ] since DATE . They have CARDINAL child from that marriage – a daughter ... who was born on DATE .", "The child 's father , [ the applicant ] , has not lived with the child since DATE . He lives in PERSON , in the FAC region . Since that time he has not participated in the child 's upbringing or provided financial support . Since DATE the child 's upbringing and financial support have been provided by [ GPE ] . The child considers him her father , and is not aware of any other father .", "[ ORG ] requested authorisation to adopt the girl , who was to be assigned the first name [ A. ] and the patronymic [ S. ] , and to be registered as her father .", "He is aware of the consequences of adoption and the requirements made of an adoptive father .", "At the court hearing , [ S.A ] spoke in support of his requests . He asked for authorisation to adopt [ the child ] without her father 's consent , inasmuch as , without good reason , the latter was not providing for her upbringing or financial support . Throughout the entire period in issue , her father had sent a few telegrams with greetings , and in DATE he had sent MONEY , which he borrowed from his wife while travelling to ORG . [ S.A. ] considers that adoption would be in the child 's interests .", "[ O.A. ] supported the adoption request . She explained that [ the applicant ] has not brought up the child since DATE , and had left for his parents ' home when the child was not yet DATE . He had left her with the child in PERSON . He had not , and did not , provide financial support . He had sent MONEY , which he had borrowed when visiting GPE in DATE . She had not prevented [ the applicant ] from meeting the child or being involved in her upbringing . The child knew the applicant as her real father , and a father - child relationship had developed between them .", "She considers that adoption would be in the child 's interest .", "A third party , the ORG , also supported the [ adoption ] request . It considers that adoption would be in the child 's interest . ”", "The court held :", "“ Having heard the parties and witness statements , examined the written evidence in the case and heard the opinion of the prosecutor , who proposed that the application be granted , the court finds the application to be lawful and deserving of being granted .", "Under LAW , adoption is allowed in respect of minors and only if it is in their best interest , taking account of the possibilities for securing their full physical , mental , spiritual and moral development .", "Under LAW , parental consent for adoption is not required where , for reasons deemed inadequate by the court , the parents have not been living together with the child for DATE and have failed to take care of and support him or her .", "In the course of the judicial investigation , it was established that [ A. ] was born to [ O.A. ] and [ the applicant ] on DATE . At that time the parents were married to each other . In DATE [ the applicant ] decided to move his permanent residence to his parents ' home in GPE , GPE region . He did not take his wife and child with him . [ O.A. ] remained alone with the child in GPE .", "In DATE she applied to the court for a divorce . On DATE the marriage was dissolved .", "The mother did not apply for maintenance payments for the child .", "From DATE [ ORG GPE ] lived together as though married . Since that time , [ ORG ] has in effect been responsible for the child 's upbringing and has also supported her financially .", "The child calls him father , and considers him to be her father ; she does not know her real father .", "On DATE [ O.A. and S.A. ] married . [ They ] subsequently changed the child 's surname to [ A. ] so that the entire family would have the same surname .", "DATE : [ the applicant ] did not agree to changing the child 's surname ; a statement from him to this effect is held in her personal file at ORG .", "[ ORG GPE ] have a child from their marriage - a daughter ... , who was born on DATE .", "The report on the child 's living conditions states that the ... family lives in a comfortable CARDINAL - roomed flat , and that all conditions have been met for the child 's upbringing . She has a separate bedroom . She calls [ S.A. ] father . [ S.A. ] is described positively , and is healthy and responsible ; he has not been deprived of his parental rights . The description of [ ORG ] ascribes him positive personal qualities .", "There are no contra - indications to adoption of the child on the basis of his health .", "He has not previously been deprived of his parental rights . He is aware of the child 's state of health .", "The salary report makes it clear that the applicant earns MONEY per month . From the statements of [ ORG S.A. ] it is clear that the family is financially provided for .", "The court has not established circumstances that would prevent the child 's adoption by [ ORG ] under ORG CARDINAL and CARDINAL of LAW .", "In DATE ORG sent [ the applicant ] a letter , informing him that the question of his child 's adoption was being decided .", "[ The applicant ] did not submit a reply to that letter .", "[ The applicant ] was invited by the court to join the case as a third party . He was ordered to submit an opinion on the [ adoption ] request . [ The applicant ] expressed his disagreement with the child 's adoption , on the ground that she had a father . He had provided financial assistance to the child insofar as he was able and had sent telegrams for holidays and festivals . He had seen the child in DATE . He could not see her more frequently since he lived in PERSON .", "In the course of the judicial investigation , witnesses who were acquainted with the ORG family were questioned . Witnesses [ L. ] and [ PERSON ] explained that in DATE [ the applicant ] suddenly moved to his parents ' home in PERSON . He did not take his wife and child with him . He left her with the child . She was obliged to work in order to support herself and the child . He did not provide financial assistance . Since DATE [ ORG ] in effect supported the child and brought her up . [ The applicant ] had not been in GPE since DATE . The child called [ GPE ] father . She and [ ORG ] had developed a father - daughter relationship .", "[ The applicant ] submitted receipts for money payments : DATE - MONEY ; DATE - MONEY ; CARDINAL DATE , unknown year - MONEY . [ O.A. ] denies that MONEY were received .", "Receipts for the sending of holiday and festive telegrams were also submitted .", "In addition , in DATE , [ the applicant ] , having come to GPE on business , met the child ; [ O.A. ] does not dispute this .", "[ The applicant ] did not participate in any other way in the child 's life .", "[ The applicant ] was not prevented from communicating with his child . [ The applicant 's ] arguments to the effect that [ O.A. ] and her mother had prevented him communicating with the child have not been confirmed . [ O.A. 's ] mother lives outside the GPE region .", "Having analysed the evidence set out above , the court concludes that [ the applicant ] failed to participate in his daughter 's upbringing for DATE and without good reason . In the court 's opinion , MONEY as maintenance payments for a period of DATE was insufficient for the child 's upkeep . Equally , financial assistance for the child was not in itself enough . It was essential that the child 's father communicated with the girl , brought her up , taught her something and took responsibility for her physical , spiritual and moral development . This was the main purpose of the parent 's role . [ The applicant ] has not fulfilled his responsibilities with regard to the child 's upbringing . [ The applicant 's ] responsibilities have been assumed by [ ORG ] .", "At present the child does not know her biological father . She considers [ S.A. ] to be her father .", "In the court 's opinion , even although he lived outside the [ LOC ] region , [ the applicant ] had an opportunity to contribute to the child 's upbringing in some way : he could have taken the child for DATE , or simply to stay with her for a while , or he could have sent various presents , etc . If the child 's mother had prevented him communicating with the child , he would have been entitled to protect his parental rights . However , [ the applicant ] did not attempt to take part in the child 's upbringing .", "In such circumstances , the court is obliged to conclude that [ the applicant ] , without good reason , failed to participate in the child 's upbringing for DATE , and that therefore the adoption may be authorised without his agreement .", "With regard to the [ adoption ] request , it is appropriate to grant it , in that adoption of the child would be in her best interest , bearing in mind that [ ORG ] is able and willing to secure the girl 's upbringing and development in full . ”", "In the operative part of the judgment the court ordered :", "“ - to agree to the adoption by [ S.A. ] of the underage child [ A. ] , with conferment of the patronymic [ S. ] and to register the adopter as the father of the adopted child ;", "- to leave the child 's surname , first name and date and place of birth without change ;", "- to maintain the mother 's judicial relationship with the child .", "... ”", "The applicant appealed against ORG judgment . ORG ( Мурманский областной суд ) dismissed the appeal and upheld the lower court 's judgment on DATE . ORG held :", "“ [ The applicant ] appealed against the [ district court 's ] judgment , requesting that it be set aside and that the matter be sent for a fresh examination . He referred to the court 's violation of the standards of substantive law , and alleged that the court had not believed his arguments and had not taken them into consideration .", "Having listened to [ S.A. ] , who asked that the [ district ] court 's judgment be left unchanged , the prosecutor 's conclusions , proposing that the appeal be dismissed , and having re - examined the evidence in the case and weighed up the appeal arguments , the bench finds the [ district ] court 's judgment to be lawful and well - founded .", "The [ district ] court correctly identified the circumstances having legal significance and , on the basis of the established facts , reached the correct conclusion about the parties ' mutual relations .", "In authorising the requests ... , the court correctly applied LAW ( “ children whose adoption is authorised ” ) and acted in the underage child 's best interests .", "Convincing reasons are cited in the judgment in confirmation of the conclusions that [ S.A. ] is able to guarantee the child the conditions necessary for her full physical , psychological and spiritual development .", "The bench considers legally unfounded the appellant 's arguments regarding the application to his daughter of the adoption procedure set out in LAW , which concerns children who have been left without parental care , as [ A. ] did not fall into that category of children .", "The appellant 's arguments are based on an incorrect interpretation of the law .", "In accordance with LAW , the [ district ] court also examined the reasons why the appellant “ does not live jointly with the child and has neglected her upbringing and maintenance for DATE ” , and found them to be inadequate .", "The reasons for the [ district ] court 's conclusions are provided and confirmed by the evidence . The court evaluated the latter in accordance with the requirements of LAW of the Code of Civil Procedure .", "[ The applicant ] did not submit persuasive evidence to the first - instance court in support of his objections to the request . In addition , the statements made to the appeal court by [ ORG ] and [ the applicant ] do not meet the requirements laid down for evidence in civil proceedings .", "Having failed to find grounds in the appeal arguments that would enable it to set aside the [ district ] court 's judgment , and pursuant to LAW , the bench decides :", "to leave unchanged the judgment of the Leninsky ORG , GPE , dated DATE , and to dismiss the appeal submitted by [ the applicant ] . ”", "On DATE a judge of ORG rejected the applicant 's request for leave to file an extraordinary appeal .", "According to LAW , adoption is allowed in respect of minors and only if it is in the best interest of the child , taking account of the possibilities to secure the child 's full physical , mental , spiritual and moral development .", "Article CARDINAL of LAW provides that parental consent for adoption is not necessary if , for reasons deemed inadequate by the court , the parents have not been living together with the child for DATE and have failed to take care of and support him or her ." ]

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[ "In the course of a judicial investigation into a charge brought against Mr PERSON on a number of counts of armed robbery , an investigating judge at PERSON ordered CARDINAL expert opinions on him : a psychiatric report from a Dr PERSON and a medical and psychological report from LOC .", "On DATE Dr PERSON submitted his report , in which he concluded :", "“ As the subject does not accept that he is either ill or guilty , he can not be regarded as curable . From what illness should he be cured ?", "His social and affective environment will play a far greater role in his rehabilitation than any medical or psychiatric treatment , which he refuses .", "All things considered , his chances of rehabilitation appear to be considerably compromised by both his criminal record and his personality . ”", "NORP The applicant requested a second opinion , which the investigating judge commissioned on DATE from LOC .", "On DATE PERSON filed his report , which contained the following passage :", "“ Mr PERSON is a gangster ( from the LANGUAGE word ‘ PERSON , which denotes the members of a criminal conspiracy ) . The conduct of the operation shows ( see the case file )", "( a ) that it was very well planned :", "- customers unaware that staff were being threatened ( raiders not masked ) , - ‘ remarkable calm’ of the raiders , who wore gloves and were armed , - booby - trapped bundles not stolen , - cash dispenser loaded for DATE , - raiders checked that security camera was a dummy .", "( b ) that it was the work of an experienced team :", "- numerous bank robberies committed according to the same pattern by the same men , - Mr PERSON is practically a weapons expert and has the advantage of the commando training he received when he did his national service in the marines .", "All Mr PERSON ’s major offences ( both past and present ) fall into the category of organised crime , sharing the following features :", "- formation of a criminal organisation , - aggravated robberies committed by armed criminals , - targets chosen to bring immediate , large gains .", "Mr PERSON is not a casual offender , but a real professional . In addition to hold - ups , it seems that his criminal activities have spread into new fields ( see the other charges ) . The back - up provided by his accomplices ( the gang ) is essential , as they provide both material support , in the form of vehicles , safe houses , alibis etc . , and moral support , since the recklessness of each member makes the group bolder and incites the others to repeat their crimes while controlling the risks better .", "Mr PERSON ’s responsibility is aggravated by many factors , for example :", "- he is a habitual reoffender , - he employs violence , threatening people with weapons , - he acts in association with accomplices …", "At no time did LAW apply to him .", "Mr PERSON is always highly dangerous because of his sang - froid and his criminal determination . He showed his astuteness throughout the investigation – as he did when committing the offences DATE and during our interview , constantly denying that he took part in them . He can not be intimidated by the judiciary . His dangerousness even seems to be directed towards the judges investigating his cases . He claims that Mr PERSON and Miss PERSON were appointed to persecute him and makes alarmingly virulent verbal attacks on them . This dangerousness is intensified by his habitual use of firearms .", "Mr PERSON ’s extreme dangerousness makes the following special measures essential :", "- he must be permanently banned from carrying weapons of any kind , including those whose sale is not controlled , - he must be placed on permanent probation after his release from prison , - imprisonment in an open prison is unthinkable , - inside prison he must be kept under special surveillance , in view of the likelihood that he will attempt to escape ( high - security wing or similar ) .", "Mr PERSON is liable to a criminal penalty , which must be directly proportionate to his extreme dangerousness .", "Mr PERSON is not curable by criminal treatment ( he is not in any case a suitable case for medical treatment ) . A number of sentences have not been sufficient to attenuate his delinquent behaviour . On the contrary , he adopts an omnipotent and defiant attitude which is reinforced still further by his imprisonment . His sthenia ( aggressive attitude ) is unbounded . He feels invincible .", "Treatment by means of a criminal penalty is only a social - protection measure aimed at preventing the certain repetition of serious offences .", "Mr PERSON can never be rehabilitated . His allegiance to the world of organised crime seems irreversible . No sentence can be heavy enough to break his spirit ; he will always try to escape from prison or strengthen his links with other criminals there . He is certain to reoffend , as is proved by his criminal record . ”", "This report was served on the applicant on DATE . He requested a third opinion , but on DATE the investigating judge refused this request .", "In the course of a separate investigation concerning an attempted escape the same judge ordered a psychiatric report and once again appointed PERSON .", "After this report had been filed Mr PERSON requested a second opinion , but this request was refused by the investigating judge on DATE . The applicant appealed on DATE but , in an order of CARDINAL October CARDINAL , the President of ORG refused him leave to appeal to that ORG .", "The applicant was committed for trial before ORG in a judgment delivered by ORG on DATE . ORG observed that PERSON PERSON had initially admitted his involvement in an armed robbery in which MONEY ( ORG ) had been stolen on DATE from a branch of ORG in Nevers . It further noted that the applicant had been picked out by witnesses from a CARDINAL - man identity parade as the person who had stood guard at the door during the robbery . ORG also found that the investigation had yielded sufficient evidence tending to establish that the applicant had robbed a branch of ORG in FAC of FRF CARDINAL on DATE , with the aggravating circumstance that the offence had been committed with the assistance or threatened use of a weapon .", "At the trial on DATE , after the experts had given evidence , PERSON PERSON ’s lawyer requested in his submissions that a formal note be entered in the record to the effect that the experts had stated an opinion on the question of the applicant ’s guilt .", "In an interlocutory decision of CARDINAL DATE ORG dismissed the applicant ’s lawyer ’s request for the evidence of CARDINAL experts examined during the trial to be ruled inadmissible , on the following grounds :", "“ Whereas CARDINAL of the lawyers of the defendant PERSON requested in his submissions that a formal note be entered in the record to the effect that the expert PERSON had stated : ‘ The facts themselves prove that he is dangerous’ and that the the expert PERSON had stated : ‘ As he does not accept that he is either ill or guilty , he can not be regarded as curable’", "and that those experts had therefore stated an opinion at the trial on the question of PERSON guilt ;", "And whereas it was submitted that the evidence given by those experts should be ruled inadmissible ;", "Whereas , while the experts were giving evidence , PERSON lawyer noted down certain statements or isolated phrases which they are alleged to have made and which , it is submitted , prove that they stated an opinion on the question of PERSON guilt ;", "But whereas these statements or isolated phrases , even if they were spoken , have been taken out of context and do not establish that the experts prejudged the merits of the case or expressed their opinion as to the defendant ’s guilt , especially as , while giving their evidence , they were always careful to specify that they were stating their conclusions concerning offences which PERSON denied committing ;", "… ”", "On DATE ORG sentenced the applicant to CARDINAL years’ imprisonment for armed robbery .", "Mr PERSON appealed on points of law . He submitted in his appeal , among other arguments , that the experts’ comments had infringed the principle of the presumption of innocence , according to which they were under a duty not to express their opinion as to a defendant ’s guilt .", "On DATE ORG dismissed the appeal , holding that the comments referred to in that ground of appeal did not constitute a breach of the oath sworn by the experts to assist the court on their honour and according to their conscience , as provided for in LAW of LAW .", "NORP The appointment of experts is governed by the following provisions of LAW :", "“ Where a technical question arises , any investigating judicial authority or court of trial may , at the request of the prosecuting authorities , or of its own motion , or at the request of any party , order an expert report .", "Where an investigating judge decides not to grant a request for an expert report , he shall make an order stating his reasons .", "Experts shall undertake their assignment under the supervision of the investigating judge or other judge duly appointed by the court ordering the expert report . ”", "“ Experts shall be chosen from the natural or legal persons appearing either in a national list drawn up by ORG or in one of the lists drawn up by ORG , with the advice of the principal state prosecutor . The terms and conditions of inclusion in and removal from these lists shall be determined by a regulation of the Prime Minister . In exceptional circumstances the courts may , by means of a decision stating reasons , choose an expert who does not appear in any of these lists . ”", "“ Upon their inclusion in CARDINAL of the lists referred to in DATE , experts shall take an oath , before ORG for the district in which they reside or have their registered office , to assist the courts on their honour and according to their conscience . They are not required to renew that oath before each assignment . ”", "“ Experts shall , if necessary , give evidence in court on the results of their technical investigations , after swearing to assist the court on their honour and according to their conscience ... ”", "The preparation of expert reports is governed by the following provisions of the same code :", "“ The terms of an expert ’s assignment , which is confined to examining technical matters , shall be specified in the decision ordering the expert report . ”", "“ ... In carrying out their assignment , experts shall liaise with the investigating judge or other judge ; they must keep him informed of the progress of their assignment so that at any time he can take any measures that may be necessary . ”", "“ During the course of the expert ’s assignment , any party may ask the court which has ordered the report to instruct the experts to make particular enquiries or to interview any named person who is likely to be able to provide them with technical information . ”", "“ The investigating judge shall inform the parties and their counsel of the experts’ conclusions ... In all cases , the investigating judge shall stipulate a period within which the parties must submit any observations or requests , particularly for a supplementary report or second opinion . During that period the case file shall be made available to the parties’ counsel . Where the investigating judge refuses a request , he shall do so in a decision stating reasons which must be made within DATE of receipt of the request ... ”", "“ The accused or a civil party may also appeal against the orders provided for in ... the fourth paragraph of LAW . ”", "Psychiatric reports are the subject of the following provisions :", "“ ... Where they [ the experts ] consider it necessary to question the accused ... the interview shall be conducted in their presence by the investigating judge or judge appointed by the court and shall in all cases comply with the formalities and conditions provided for in Articles CARDINAL and CARDINAL . ”", "“ An investigating judge may prescribe a medical examination , instruct a doctor to carry out a medical and psychological examination or order any other necessary measures . If the investigating judge decides to refuse a request for such an examination by the accused or his counsel , he must do so by means of an order stating his reasons . ”" ]

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[ "6" ]

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

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[ "The applicants , PERSON and PERSON , were born in DATE and DATE respectively and live in GPE . The second applicant is the mother of the former .", "When the first applicant ( “ the applicant ” ) was DATE , on DATE at TIME he was arrested at his home by police officers from ORG attached to ORG , on suspicion of involvement in various incidents of bag snatching in ORG .", "According to the report drafted by the police , the arrest took place on CARDINAL DATE at TIME on the street outside his residence . The report stated that the police had acted upon the information of a certain PERSON , a fellow detainee , who had cited the applicant 's name during his interrogation in relation to the bag snatching in GPE . The report also stated that the applicant 's mother had been informed of the arrest and detention .", "On CARDINAL DATE the applicant was given a medical examination at ORG . A subsequent medical report revealed that there were some blade cuts on his left arm which were DATE but , apart from those injuries , no signs of possible ill - treatment were noted . The applicant was then taken into custody at FAC .", "On DATE at CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL and TIME , the applicant and PERSON were taken to on - site inspections . A lawyer assigned by ORG was present during these inspections , when the applicant gave detailed statements as to how he and PERSON had planned and committed the offences .", "Around TIME DATE , he was again given a medical examination . The medical report drafted on that occasion recorded no signs of beatings or the use of physical force on the applicant 's body . DATE , at the request of the police , the public prosecutor , without seeing the applicant , extended his custody period by DATE under Article CARDINAL § CARDINAL of the former Code of Criminal Procedure . According to the report drafted by the police at TIME on DATE , the applicant was handed over to ORG of ORG .", "On DATE at TIME , the applicant was brought for a further medical examination . The medical report prepared on DATE noted CARDINAL bruises of QUANTITY on his right upper arm and a bruise of CARDINAL x QUANTITY on his left upper arm just below his shoulder , which were estimated to be DATE ; some old cutting scars on his arms and chest were also noted . The applicant was given a second medical examination at CARDINAL p.m. on DATE . The second medical report confirmed the findings of the first report . These reports both stated that the medical examinations had been performed upon the request of ORG .", "On CARDINAL DATE the Juvenile Police took the applicant for a medical examination . The forensic medical report prepared on that occasion recorded the old cutting scars on the applicant 's body , but no signs of the use of recent physical force were noted .", "On DATE the applicant was brought before the public prosecutor . In his statement to the public prosecutor , made in the presence of another duty lawyer , the applicant denied the charges against him . The lawyer claimed that the applicant had been ill - treated whilst in police custody and that he still bore the signs of that treatment . He requested that the applicant be referred to the forensic medicine institute for a complete medical report .", "DATE , the applicant repeated his allegations of ill - treatment before the investigating judge . He alleged that , after the police officers had apprehended him , they blindfolded him ; electric shocks were administered to his body ; he was beaten with truncheons and forced to admit to the charges . He showed the marks on his body to the judge . The judge noted a bruise of QUANTITY about the thickness of a little finger on the applicant 's right upper arm , a bruise of QUANTITY the thickness of a little finger just under his left shoulder , a scab - covered lesion under his left kneecap , a swelling on his left ankle and some old blade cuts . The applicant was then remanded in custody .", "On CARDINAL DATE the applicant 's lawyer filed a complaint with ORG , requesting the public prosecutor to bring criminal proceedings against the police officers who had been on duty when the applicant was in their custody . He also repeated that the applicant should be referred for a full medical examination . Subsequently , the public prosecutor launched an investigation into the applicant 's complaint of ill - treatment .", "On DATE , the public prosecutor took a detailed statement from the applicant , in which he complained about the police officers and repeated almost the same submissions he had made to the investigating judge , adding that he had not been subjected to further ill - treatment after he had been handed over to ORG . He also admitted that the scars on his upper and lower arms as well as his wrist were self - inflicted with metal wire , which he had torn off the cell window , as he could not bear the pain of ill - treatment . After taking the applicant 's statement , the public prosecutor issued a letter to ORG , asking for a detailed medical report on the applicant , including an explanation as to the nature and cause of his injuries .", "A report submitted by ORG on DATE made reference to the previous medical reports dated CARDINAL , DATE and CARDINAL DATE , and drew its own conclusions after the applicant had been examined . It noted that the applicant had a bruise of CARDINAL x QUANTITY of which the outer line was a green - yellow colour and the centre was purple - dark blue , on the right upper arm , estimated to be CARDINAL or DATE , and an old scar of QUANTITY on his left kneecap . The bruising was deemed to have been caused by blunt force trauma . The applicant 's injures were not regarded as life threatening but classified as sufficient to render him unfit for DATE .", "On DATE the public prosecutor decided not to prosecute the police officers concerned . Referring to all the medical reports , this decision concluded briefly that the lesions had occurred prior to the applicant 's arrest and that the scars on his body and arms had been self - inflicted , as he admitted in his statement of CARDINAL DATE . The applicant challenged this decision before ORG .", "On DATE ORG rejected the applicant 's objection .", "Section CARDINAL ( b ) of ORG ( DATE , as amended on CARDINAL DATE ) provides :", "“ Anyone who has reached DATE , but is CARDINAL , may be arrested . The parents and a lawyer shall be informed of the arrest and the minor shall be brought promptly before the public prosecutor . In these cases , the preliminary investigation shall be conducted personally by ORG or by a public prosecutor to whom the former delegates that duty ... ”" ]

[ "3" ]

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[ "NORP In DATE plots of agricultural land owned by the applicant ’s father were expropriated by the former ORG ( okresní národní výbor ) under the Czechoslovak LAW No . TIME ( “ the DATE LAW ) . The applicant ’s father had never obtained any compensation . In DATE some of these plots were transferred to the ownership of natural persons in an assignment procedure under LAW . In DATE the applicant ’s father died and the applicant ’s rights over his estate were confirmed .", "After DATE of the communist regime in GPE , the Act No . CARDINAL/CARDINAL on ORG in respect of Land and Other ORG ( “ zákon o půdě ” , the “ LAW ” ) entered into force on DATE . The Act provided that LAW was no longer applicable and that under certain conditions property confiscated pursuant to that LAW without compensation could be returned to its former owners or their heirs if it was still in the possession of the ORG or of a legal person . However , if such property had been transferred into the possession of natural persons , the former owners or their heirs could – subject to certain exceptions – only claim the assignment of other equivalent property or financial compensation .", "On the basis of LAW , the applicant entered into restitution agreements with CARDINAL legal persons ( the ORG Králové ORG and DATE Krásná Ves Agricultural Cooperative ) on DATE and CARDINAL DATE respectively . By CARDINAL decisions of CARDINAL DATE ORG ( pozemkový úřad , “ the ORG ” ) refused to approve the restitution agreements . Referring to section PERSON ) of LAW , it found that some of the plots had been assigned to different owners pursuant to LAW , and that these owners , being natural persons , had proved their property rights by showing their deeds of assignment . ORG based its decisions on the following documents : the decision of the former ORG ( státní notářství ) of CARDINAL DATE on the applicant ’s father ’s inheritance , the decision of the former ORG June CARDINAL on the expropriation of the applicant ’s father ’s property , the record of the former ORG ( místní národní výbor ) of DATE on the proceedings on the applicant ’s father ’s appeal against the expropriation , the decision of the former ORG ( krajský národní výbor ) of CARDINAL DATE by which the decision of expropriation had been modified , and an extract ( výpis ) from the land register ( pozemková kniha ) relating to the LOC and LOC . ORG had also at its disposal copies of the deeds of assignment made out by ORG ( ORG úřad ) on DATE .", "It appears from the text of the invitation issued by ORG on DATE that the latter scheduled a hearing for DATE to which the applicant and his lawyer were invited , together with the representatives of ORG , the agricultural cooperative and representatives of ORG ( Pozemkový fond ) . According to the record of the hearing , only the applicant and the representatives of ORG and of the agricultural cooperative attended the hearing . The applicant refused to make any comments on the issue of the administrative proceedings and did not sign the record . The representatives of both legal persons left the hearing before the end .", "On DATE the applicant lodged appeals with ORG ( městský soud , “ the ORG ” ) against the CARDINAL administrative decisions . He claimed the restitution of the entire property , contesting that the acquisition of part thereof had been proven by the natural persons concerned and requesting access to the respective deeds of assignment .", "On DATE ORG joined both appeals and upheld the administrative decisions of DATE . It held that ORG had correctly refused to approve the restitution agreements as a whole as they also covered property whose ownership had been transferred to natural persons and thus could not be returned to the original owner . This had been established on the basis of all relevant documents including the deeds of assignment , which were included in the administrative files . The applicant could have consulted them at any time during the administrative proceedings if he had wished to do so as provided for in section CARDINAL ) of LAW . ORG considered that no hearing was necessary in the applicant ’s case , as the facts had been correctly established by the administrative authority and only points of law were in issue before it . In this respect , it referred to section CARDINAL(f ) of LAW .", "The case was referred back to ORG pursuant to section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) which gave a new decision on DATE . In accordance with the opinion of ORG , by which it was bound by virtue of section ORG ) of the Code of Civil Procedure , ORG confirmed the applicant ’s property rights in respect of those plots which had not been transferred to natural persons under LAW . At the same time , it informed the applicant that he could seek compensation under LAW or DATE of LAW for the plots which could not be returned to him .", "On DATE and DATE the applicant lodged a constitutional appeal ( ústavní stížnost ) claiming inter alia that his property rights had been violated , that he had not been able to put forward further evidence and that ORG had not informed him about its decision to join both cases . He invoked inter alia Articles CARDINAL and CARDINAL of LAW ( Listina základních práv a svobod ) .", "On DATE ORG ( PERSON ) rejected the applicant ’s appeal as manifestly ill - founded . It considered that the applicant ’s constitutional rights to a proper court procedure had not been violated by the manner in which ORG had dealt with his appeal . Having regard to the special nature of the judicial review of administrative decisions , the court ’s function was limited to a legal reassessment of the case on the basis of the facts established by the administrative authority . The applicant had not invoked evidence disregarded by ORG and , by merely articulating his discontent with the latter ’s decision , had not raised any valid objection to the facts as established by it . Furthermore , according to ORG , ORG had not infringed constitutional law by deciding the case without a hearing as this was lawful under section CARDINAL(f ) of LAW when the case involved only the assessment of points of law .", "On DATE the applicant died . Nevertheless , his lawyer introduced before ORG a request for compensation by the assignment of other plots pursuant to section CARDINAL ) of LAW . According to the Government , this request is still pending before ORG .", "On DATE the judicial proceedings regarding the applicant ’s inheritance were terminated by a finding of the GPE CARDINAL ORG that the applicant had not left any estate . Apparently , the court was not aware of ORG decision of DATE .", "On DATE the applicant ’s nephew , PERSON , requested the district court to re - open the inheritance proceedings . He produced his uncle ’s last will of DATE in which he was designated as a universal heir of the applicant ’s estate , while the applicant ’s CARDINAL adult children were disinherited . The re - opening of the judicial proceedings concerning the inheritance was eventually granted on DATE . On DATE the Prague ORG approved an agreement concluded between Mr Bouček and the applicant ’s CARDINAL children concerning the division of the applicant ’s estate on an equal basis .", "LAW regulates , inter alia , the restitution of certain agricultural and other properties ( defined in section CARDINAL ) , which have been ceded or transferred to the ORG or other legal persons between LAW DATE and DATE . Section CARDINAL ) lists the acts giving rise to a restitution claim including , in sub - paragraph ( b ) , confiscation without compensation pursuant to LAW .", "According to section CARDINAL , those obliged to make restitution are , in principle , the ORG or any legal person possessing the real property at the date when the LAW entered into force . Natural persons can be obliged to return real property to a rightful claimant only in the circumstances set out in section CARDINAL , that is if they or their relatives acquired it from the ORG or another legal person contrary to any law in force at the relevant time or for a price inferior to that specified in any applicable price regulations or on the basis of unlawful advantage . In such cases the restitution is ordered by a judicial decision upon the application of the rightful claimant which must be filed before DATE or within DATE from the date when the decision of the land office refusing the restitution of the real property in question has become final . In any other case , a plot assigned to a natural person who has established his property rights by producing his deed of assignment is not available for restitution ( section PERSON ) , which was , however , repealed by a judgment of ORG ( No . CARDINAL ) with effect from DATE ) .", "Furthermore , no restitution shall take place in the cases listed in section CARDINAL ) of the LAW which include , inter alia , cases where a right of personal use of the property has been created for a natural person except in the circumstances mentioned in section CARDINAL . In such cases , the land office shall transfer other equivalent ORG , preferably located in the same area and determined according to the principles of the agricultural land reallocation legislation , to the rightful claimant if the latter consents ( section CARDINAL(CARDINAL ) ) .", "If no restitution is provided for and the person entitled to restitution can not be compensated by the assignment of other real property , he has a right to financial compensation according to specified conditions ( section CARDINAL ) .", "As regards the procedure to be followed , section CARDINAL(CARDINAL ) of the LAW provides that a rightful claimant must lodge his claim with the appropriate land office and at the same time request restitution from the person or entity possessing the real property at issue . The latter is required to conclude , within DATE , an agreement on the transfer of the property with the claimant ( restituční dohoda , “ restitution agreement ” ) . According to section CARDINAL(CARDINAL ) , any restitution agreement must be confirmed by the appropriate land office . If the land office does not approve the restitution agreement , the ORG entitled person can appeal to the court . If the court , too , refuses to approve the agreement , it refers the case back to the land office for a decision on the merits of the case ( section CARDINAL(CARDINAL ) ) . This decision is again subject to judicial review ( section CARDINAL(CARDINAL ) ) .", "The proceedings before land offices are governed by Act No . ORG ( Code of Administrative Procedure ) .", "Sections CARDINAL and CARDINAL regulate the basic principles of the proceedings before administrative authorities . The proceedings must be conducted in accordance with the law , and parties must always be given the opportunity to defend effectively their rights and interests , to challenge the facts of the case and to make proposals as to the proceedings . Furthermore , the parties enjoy equal rights and have the same obligations . The decisions of administrative authorities must be based on facts that have been established in a reliable manner .", "Pursuant to section DATE , the administrative authority shall order an oral hearing if this is required by the nature of the case , in particular where such a hearing will contribute to the clarification of the matter at issue . The parties to the proceedings must be summoned to attend the oral hearing and invited to express their comments and proposals in the course of the hearing . Oral hearings are not public unless a special legal rule provides otherwise or the administrative authority decides that the hearing shall be public .", "According to section PERSON ) , the parties to the administrative proceedings and their representatives have the right to have access to documents and to make extracts therefrom , except for the records of voting .", "According to section CARDINAL ) , administrative authorities are under the obligation to establish all facts accurately and comprehensively . For that purpose they have to obtain all necessary supporting documents and data .", "The lawfulness of decisions of the administrative authorities can be reviewed by the courts in accordance with Part V of LAW .", "At the relevant time section CARDINAL(f ) ( repealed by a judgment of ORG . CARDINAL with effect from DATE ) entitled the courts to deliver a judgment without an oral hearing in simple cases , in particular when there was no doubt as to whether the administrative authority had established the facts correctly , and only points of law were at issue .", "Pursuant to section CARDINAL(i)(CARDINAL ) , the courts , when reviewing administrative authorities’ decisions , take into consideration the facts as they existed at the moment when the administrative decision was taken .", "In accordance with section CARDINAL(m)(CARDINAL ) , the parties to the proceedings before the court are the parties in the proceedings before the administrative authority and the administrative authority whose decision is to be reviewed .", "Pursuant to section PERSON ) , when the court reviewing an administrative authority ’s decision does not decide without an oral hearing pursuant to section CARDINAL(f ) , it may take such evidence as is necessary for reviewing the decision at issue .", "Pursuant to section ORG ) , if the court quashes the decision of the administrative authority , the latter , when taking a new decision , is bound by the legal opinion expressed by the court .", "In accordance with section ORG ) , a court decision reviewing an administrative decision is not subject to a remedy except in the cases listed in sub - paragraph CARDINAL ( which are not pertinent in the present case ) .", "According to section CARDINAL , a judgment must be pronounced publicly . In accordance with the established practice , the public delivery of the judgment must be recorded in TIME also in those cases where the judgment was delivered without an oral hearing .", "According to section DATE ) , district land offices are autonomous departments ( samostatné referáty ) of district offices .", "At the relevant time , the status and competence of district offices was governed by Act No . CARDINAL/CARDINAL . This Act was repealed on DATE when a new Act on District Offices ( No . CARDINAL/CARDINAL ) entered into force .", "Section CARDINAL describes district offices as administrative organs , which carry out local state administration on their respective territories . The law can empower district offices to carry out local state administration on other territories . According to section DATE , the exercise of the activities of district offices is directed and controlled by the Government .", "Pursuant to section CARDINAL(CARDINAL ) , the head ( přednosta ) of a district office is appointed and dismissed by the Government on the proposal of the Minister of the Interior .", "According to section CARDINAL(CARDINAL ) , the officers of district offices are subordinated to the heads of those offices ." ]

[ "6" ]

[ "6-1" ]

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[ "Mr PERSON is a caretaker employed by ORG ( “ the centre ” ) in GPE , where he lives .", "On DATE he instituted proceedings against the centre in the Friuli - Venezia Giulia Regional Administrative Court ( “ the RAC ” ) seeking judicial review of a disciplinary penalty imposed on him by decision of the chairman of the centre 's board of governors on CARDINAL DATE . The latter , having obtained the advice of the disciplinary board , had suspended the applicant for DATE , on the ground that he had failed in his duty of diligence and perturbed “ the continuity and regularity of the service ” by taking sick - leave which was considered to be unjustified .", "The applicant forfeited all but a fraction of his salary .", "In a judgment of CARDINAL DATE , the text of which was deposited with the registry on CARDINAL DATE , the ORG gave judgment in the applicant 's favour .", "The centre appealed on CARDINAL DATE . In a judgment of CARDINAL DATE , the text of which was deposited with the registry on DATE , the PERSON reversed the lower court 's judgment and dismissed PERSON PERSON 's application ." ]

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[ "The applicants , all of whom are NORP citizens , live in GPE . They were born in DATE , DATE and DATE respectively .", "On DATE and on DATE the ORG and the ORG passed CARDINAL decisions according to which the deposits of certain categories of persons at ORG have to be index - linked . According to the decisions , ORG was supposed to allocate the necessary funds to ORG . However it failed to do so and ORG could not carry out the decisions of the ORG and of the Government .", "In DATE and DATE the applicants lodged with the ORG civil actions against ORG in which they sought compensation .", "By judgments of CARDINAL DATE and DATE the court awarded Ms ORG compensation of ORG CARDINAL and MDL CARDINAL respectively . No appeal was lodged and the judgments became final .", "By judgment of DATE the court awarded PERSON LOC compensation of MDL CARDINAL . No appeal was lodged and the judgment became final .", "By judgment of CARDINAL DATE the court awarded PERSON PERSON GPE compensation of MDL CARDINAL . No appeal was lodged and the judgment became final .", "NORP By judgment of CARDINAL DATE the court awarded PERSON compensation of MDL CARDINAL . No appeal was lodged and the judgment became final .", "On unspecified dates the applicants lodged complaints about the non - enforcement of the judgments with ORG and ORG . In its replies , ORG and ORG informed them that the judgments could not be enforced , as no funds had been provided for the enforcement of judgments by the relevant legislation within the DATE ORG budget .", "On DATE , after the cases were communicated to the Government , the judgments were executed by ORG .", "The relevant provisions of LAW , in force at the material time , stated :", "Article CARDINAL . The decisions of the courts and other authorities susceptible to enforcement", "The following are the acts which have to be enforced in accordance with the provisions of the present Code : CARDINAL ) Civil law judgments , orders and decisions adopted by the courts ...", "Article CARDINAL . The issuance of the enforcement warrant", "The enforcement warrant is issued by the court to the creditor , after the judgment has become final , except for cases of immediate enforcement , when the enforcement warrant is issued immediately after the delivery of the judgment .", "Article CARDINAL . The request to start the enforcement procedure", "The bailiff starts the enforcement procedure at the request of the persons enumerated in LAW . In cases provided for in the second paragraph of this article , the bailiff starts the enforcement procedure following the judge ’s order .", "Article CARDINAL . The supervision of enforcement of judgments", "The supervision of the correct and prompt enforcement of judgments is conducted by ORG of ORG ." ]

[ "6" ]

[ "6-1" ]

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[ "The applicants are husband and wife . They were born in DATE and live in Novokuznetsk .", "In DATE both applicants subscribed to a ORG savings scheme for buying cars . The ORG failed to provide the cars , and the applicants had to sue the Government .", "On DATE the Ust - Yansk District Court of ORG gave CARDINAL judgments and awarded the first applicant MONEY ( “ RUB ” ) , and the second applicant RUB CARDINAL,CARDINAL.CARDINAL . These judgments became binding on DATE , but were not enforced immediately . On the ORG 's request , on DATE the Presidium of ORG of GPE quashed the judgments and dismissed the applicants ' claims on the ground that the district court had misinterpreted material laws .", "In DATE the first applicant again sued the Government for the undelivered car 's price .", "On DATE the district court awarded the first applicant RUB ORG . This judgment became binding on DATE . On the ORG 's request , on DATE the presidium quashed the judgment and dismissed the first applicant 's claims on the ground that the district court had misinterpreted material laws .", "Under LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE .", "The Code of Civil Procedure of DATE defines the supervisory - review procedure as follows :", "“ CARDINAL . Judicial decisions that have become legally binding , with the exception of judicial decisions by the ORG of ORG of GPE , may be appealed against ... to a court exercising supervisory review , by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions .", "Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... ”", "“ Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions . ”", "“ CARDINAL . Having examined the case by way of supervisory review , the court may ...", "( CARDINAL ) quash the judicial decision issued by a court of first , second or supervisory - review instance in whole or in part and remit the matter for a fresh examination ...", "( CARDINAL ) quash or alter the judicial decision issued by a court of first , second or supervisory - review instance and issue a new judicial decision , without remitting the matter for a fresh examination , if the substantive law has been erroneously applied or interpreted . ”" ]

[ "6", "P1" ]

[ "P1-1" ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in Taganrog . She was represented before the ORG by PERSON , a lawyer practising in Taganrog . ORG ( “ the Government ” ) were represented by Mr P. Laptev , ORG at ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "The applicant moved from GPE to GPE due to military hostilities in GPE . She left her flat and other property in GPE .", "In DATE the PERSON administration approved payment of compensation for the lost housing . The compensation was paid to the applicant in DATE .", "The applicant considered that the value of the compensation had significantly decreased because it had taken the administration DATE to pay it . She sued ORG of GPE for the damage caused by the delay in payment of the compensation .", "On DATE the Justice of the Peace of the CARDINALnd Circuit of the Leninskiy District of Rostov - on - Don granted the applicant ’s action and awarded her MONEY ( RUR , CARDINAL euros ) .", "That judgment was upheld on appeal by ORG of PERSON - on - PERSON on DATE and the applicant sent a writ of execution to ORG on DATE .", "On DATE ORG transferred the judgment debt to the applicant ’s bank account . However , DATE , the bank returned the sum to ORG because the applicant had closed her account .", "On DATE the applicant sent a registered letter to ORG informing it of her new bank account . As it follows from the acknowledgment of receipt , the applicant ’s letter reached ORG on DATE .", "On DATE the judgement debt was paid to the applicant .", "In DATE the applicant sued ORG for RUR CARDINAL ( approximately ORG CARDINAL ) as compensation for the damage caused by depreciation of the value of the judgment debt as a result of non - enforcement from DATE to DATE .", "On DATE the Justice of the Peace of the CARDINALnd Circuit of the Leninskiy District of GPE - on - PERSON granted the applicant ’s action and awarded her ORG ( approximately EUR CARDINAL ) .", "The judgment of DATE was not appealed against and became final on DATE . DATE ORG issued the applicant with a writ of execution .", "On DATE the applicant submitted the writ of execution to ORG and on DATE she received the money ." ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant bought a QUANTITY flat in GPE at CARDINAL FAC ( “ the flat ” ) and has been living there with her son born in DATE . The seller of the flat , PERSON , had bought it from PERSON . , who had acquired it under the privatisation scheme . The facts relating to the ownership of the flat prior to the applicant ’s acquisition of it and the subsequent invalidation of her title may be summarised as follows .", "NORP Before its privatisation the flat was owned by GPE . On DATE the prefect of NORP circuit allocated the flat to PERSON as social housing . PERSON signed a social tenancy contract on DATE and was registered as the flat ’s principal , and only , tenant on DATE . No family members were indicated in the moving - in order .", "On DATE ORG of LOC of GPE registered PERSON spouse PERSON . at his address . The registration was effected upon PERSON ’s written application , certified by public notary NORP on DATE , and accompanied by PERSON . ’s and PERSON ’s marriage certificate issued in PERSON on DATE . PERSON . ’s identity was confirmed upon presentation of her passport .", "On DATE was found dead . The inquest found that he had fallen out of the window of his flat and concluded that he had committed suicide , as no evidence of any other person ’s involvement could be found . It was noted that PERSON was a former drug addict .", "On DATE PERSON . issued a power of attorney to PERSON , authorising him to represent her in all transactions related to the flat and in all privatisation and registration procedures before the property and residence registration authorities . The power of attorney was certified by public notary PERSON , who had indicated in a standard clause that PERSON . had signed the authority in her presence and that her identity and legal capacity had been confirmed .", "On DATE ORG of GPE ( PERSON жилищной политики и жилищного фонда г. Москвы , “ the GPE Housing Department ” ) concluded a social tenancy contract with PERSON . and on DATE signed a privatisation agreement in respect of the flat . PERSON . was represented by PERSON in these transactions .", "On DATE ORG ( ORG управление ORG регистрационной службы по г. PERSON ) registered PERSON . ’s ownership of the flat in ORG ( Единый государственный реестр прав на недвижимое имущество и сделок с ним , “ the Land Register ” ) .", "On DATE PERSON . sold the flat to PERSON On DATE ORG ’s ownership was registered in ORG .", "On DATE ORG sold the flat to the applicant . The terms of the purchase included the applicant ’s obligation to pay the seller CARDINAL,CARDINAL.CARDINAL MONEY ( RUB ) in respect of the flat , an advance payment of MONEY ( ORG ) , plus a contribution of RUB CARDINAL to renovation costs . It also included an undertaking by the seller to buy the applicant an equivalent flat in the event that the applicant lost the title for reasons relating to any defects of the title which pre - dated the purchase of the flat by the applicant .", "The transfer of title was registered at ORG for the Registration of Property .", "The applicant and her son moved into the flat and have been living there since .", "On DATE PERSON . died , reportedly of natural causes .", "On DATE ORG of the ORG informed ORG of suspected fraud in the privatisation of the flat .", "On an unidentified date in DATE ORG brought an action against the applicant and the previous owners of the flat PERSON and PERSON . They referred to a “ check ” that had revealed that no marriage had taken place between PERSON and PERSON . and that PERSON . ’s passport used for the registration and privatisation procedures had been declared lost in DATE ; they asked the court to establish that the flat had been fraudulently acquired by PERSON . and to declare the privatisation and all the ensuing transactions in respect of the flat null and void . The applicant lodged a counterclaim to have her title to the flat recognised by the court .", "On DATE the Cheryomushkinskiy District Court of GPE dismissed the authorities’ claim and granted the applicant ’s counterclaim , recognising her as the legitimate owner of the flat . It noted , in particular , that the applicant had purchased the flat in good faith ( a bona fide buyer ) and paid a purchase price for it . Therefore there were no grounds to invalidate the transactions in question . No appeal was lodged within the DATE statutory limitation period , and the judgment became final and enforceable .", "On DATE the applicant complained to the police that Mr A.B. , an official at ORG , was trying to extort USD MONEY from her in return for a promise that the ORG would not appeal against the judgment of DATE . On DATE the police carried out a covert operation , during which PERSON was caught receiving the aforementioned sum of money from the applicant , who had been primed by the police . On DATE A.B. was convicted of embezzlement on account of that episode , and received a custodial sentence .", "In the meantime , ORG submitted a request for an extension of the time - limit for appeal against the judgment of DATE , on the grounds that the prosecution of PERSON , who had been in charge of the file , left the GPE understaffed and unable to comply with the deadlines . On DATE ORG granted the request and extended the time - limit for the appeal . The appeal hearing took place on DATE before ORG , which quashed the judgment and remitted the matter back to ORG for a fresh first - instance examination . It instructed the first - instance court to clarify whether the claims concerned the invalidation of the transactions regulated by LAW , or the reclaiming of property under LAW .", "On DATE criminal proceedings against an “ unidentified perpetrator ” were instituted on suspicion of fraud in the process of privatisation of the flat . The applicant requested to be granted victim status in these proceedings , but this was refused on the grounds that the damage resulting from the fraud was caused to ORG , not to the applicant . The decision refusing the applicant victim status was taken by ORG on DATE .", "On DATE ORG found that the privatisation of the flat by PERSON . had been fraudulent . It established , in particular , that the civil act registration authority had found no record of a marriage between PERSON and PERSON . and concluded that their marriage certificate had been forged . Therefore PERSON . had had no right to be registered at PERSON ’s address or to privatise his flat after his death . In respect of the applicant , it found that she was a bona fide buyer , within the meaning of LAW . However , it found that the flat , having been fraudulently privatised , had left the possession of GPE , its lawful owner , without that body having the intention to divest itself of it . Thus , by application of LAW ruling ORG of DATE , the case fell under CARDINAL of the CARDINAL exceptions to the protection of a bona fide buyer ’s title , which required that precedence be given to the previous owner . The applicant ’s title to the flat was accordingly revoked and GPE declared the flat ’s lawful owner . The court ordered the applicant ’s eviction without compensation or an offer of alternative housing . The applicant appealed .", "On DATE the GPE Ombudsman wrote to the Mayor of GPE , asking him to consider offering the applicant a social tenancy of the flat . However , on DATE ORG replied in the negative , stating that this would undermine the order of priority on the waiting list .", "On DATE the investigating authority decided to grant the applicant victim status in the criminal proceedings and questioned her in this capacity . On DATE , however , they overruled that decision as unfounded , following an order by the prosecutor that they should do so .", "The criminal investigation of the suspected fraud was then suspended on the grounds that no culprit had been identified . The file , however , contained certain material on the basis of which the courts were able to establish that the privatisation had been carried out improperly . It included , in particular , the finding that all acts relating to PERSON . ’s registration as a resident of the flat , its privatisation and sale to ORG had been carried out using PERSON . ’s passport , which had been declared lost in DATE . It also contained a reply from the municipal authorities of PERSON that they had no record of PERSON . ’s and PERSON ’s marriage having been registered in DATE . The PERSON passport authorities had replied to the investigator that PERSON . had been previously registered as a resident of PERSON , and her registration there had not been removed until her death in DATE . There was also a reply from public notary NORP that she had had no records of PERSON ’s application in her register and she denied having certified it .", "On DATE the appeal against the judgment of CARDINAL DATE was rejected in the final instance by ORG .", "The applicant requested a suspension of the execution of the judgment in so far as it concerned the eviction . On DATE the court granted her request and adjourned the eviction until DATE . This term was later extended until DATE .", "On DATE the Deputy Prosecutor General requested ORG to examine the applicant ’s case in supervisory review proceedings . He considered the revocation of her ownership of the flat unlawful and unjustified . First , he argued that the rule contained in Article CARDINAL § CARDINAL of the Civil Code ordering reinstatement of ownership of the property which was removed from its owner ’s possession without the owner ’s intention to divest itself of it was inapplicable in her case . He pointed out that ORG was a party to the transaction in which the flat had been privatised and could not be unaware of it ; the ORG had never claimed that the official in charge of the privatisation had gone beyond her authority or acted contrary to instructions . Hence it could not be said that the flat had been privatised without the ORG having that intention . Therefore , the applicant , as a bona fide buyer , should not have been required to return the flat to its earlier owner , GPE . Secondly , the Deputy Prosecutor General considered that the judicial decisions had not balanced the interests of the municipality against the lawful rights and interests of the applicant , whereas the protection of individual citizens should have taken priority , in accordance with LAW . As a result of a third - party fraud , a single mother and her child faced eviction without compensation and without an offer of alternative housing . He noted that she had no other housing and that all her savings had been put into the purchase of the flat and the costly litigation . Finally , he pointed out that the courts had exceeded their responsibility in applying LAW , in lieu of LAW on which the plaintiff had relied , and had thereby granted the award beyond the scope of the claim .", "On DATE ORG refused the request by the Deputy Prosecutor General , declining to reconsider the case in supervisory - review proceedings . It noted that the applicant ’s status as a bona fide buyer had not been in doubt at any stage . However , the courts had correctly applied the law and granted the plaintiff ’s lawful claims . It added that the applicant remained free to sue PERSON for damages .", "On DATE the ORG of GPE rejected the applicant ’s application for further suspension of the execution of the judgment of DATE , noting that there had already been CARDINAL extensions and there were no grounds for another .", "On DATE the GPE City Ombudsman wrote to the Mayor of GPE , alerting him to a growing number of cases of flats being repossessed by GPE against bona fide buyers on account of irregular privatisation by the previous owners of the flats ; all of them were being denied any compensation or substitute housing . In his view , the incidents of fraudulent privatisation should not have been treated by courts as cases where property was removed from possession “ without the owner ’s intention to divest ” within the meaning of LAW . He pointed out that privatisations were transactions entered into by the ORG , represented by its public officials , whose duty was to make all the necessary checks and to ensure the procedural integrity of the transaction . The responsibility of the ORG was thus engaged wherever they failed in this task . In any event , failure to identify documents as forged could not in such circumstances be classified as passage of title without the owner ’s intention to divest . He referred to the applicant ’s case as CARDINAL flagrant example of a wrong and unjust outcome of the erroneous interpretation adopted by GPE courts in such cases . On DATE he sent letters to ORG and the head of ORG of the Interior , citing the applicant ’s case , calling for the thorough investigation of fraud cases of this type , and requesting that the applicant ’s victim status be reassessed in the relevant criminal proceedings .", "According to the applicant ’s latest submissions , she has not yet been evicted but considers it imminent .", "The Civil Code provides for CARDINAL different avenues by which one ’s property title may be challenged by a previous owner :", "“ CARDINAL . An invalid transaction shall not entail legal consequences , with the exception of those connected with its invalidity , and shall be invalid from the moment of its conclusion .", "NORP If a transaction has been recognised as invalid , each of the parties shall be obliged to return to the other party all it has received as part of the transaction , and if return is impossible in kind ( including where the transaction concerns the use of property , work performed or services rendered ) , its cost shall be reimbursed in money - unless other consequences of the invalidity of the transactions have been stipulated by law .", "If it follows from the content of the disputed transaction that it may only be terminated for the future , the court , while recognising the transaction as invalid , shall terminate its operation for the future . ”", "“ CARDINAL . If the property has been purchased for a price from a person who had no right to alienate it , and the acquirer is unaware and could not have been aware ( the bona fide acquirer , or the acquirer in good faith ) , the owner shall have the right to reclaim this property from the acquirer , if the said property was lost by the owner or by the person into whose possession the owner has passed the property , or if it was stolen from CARDINAL or the other , or if it has left their possession in another way , in the absence of intention on their part to divest themselves of it .", "NORP If the property has been acquired without consideration from a person who had no right to alienate it , the owner shall have the right to reclaim the property in all cases .", "Money and securities in respect of the property shall not be reclaimed from the bona fide acquirer . ”", "By its ruling of DATE , DATE , ORG interpreted LAW as not allowing the first owner to reclaim his property from a bona fide buyer unless there is a special legislative provision to this effect . Instead , a claim vindicating prior rights ( виндикационный иск ) could be lodged under LAW if the conditions indicated in paragraphs CARDINAL and CARDINAL are met , in particular if the property has left the owner ’s possession in the absence of intention on the part of him or her to divest themselves of it , or if the property has been acquired without consideration .", "Further interpretation of LAW was provided by the Plenary of ORG of GPE and the Plenary of ORG of GPE , contained in the second paragraph of item CARDINAL of their joint ruling of DATE , no . CARDINAL “ On certain questions arising in judicial practice in respect of resolution of disputes connected with the protection of property rights and other real rights ” and in ORG ruling of DATE , CARDINAL . They held in particular that there was no automatic link between invalidity of a transaction and an owner ’s intention or otherwise , to divest themselves of it . ORG ruling held , in so far as relevant , as follows :", "“ ... the uncertainty of the legal provisions [ including LAW ] challenged by the claimant is eliminated by the interpretation of the Plenary of ORG of GPE and the Plenary of ORG of GPE , contained in the second paragraph of item CARDINAL of the [ ruling of DATE , no . CARDINAL ] : ‘ the invalidity of the transaction in execution of which the transfer of property was effected does not by itself prove that it left the possession of the owner in the absence of intention to divest on their part ; the courts need to establish whether the owner intended to transfer possession to another person’ ” ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving a prison sentence in PERSON ( NORP Republic ) . He is represented before the ORG by Mr NORP ORG , a lawyer practising in GPE .", "On DATE the GPE ORG found the applicant guilty of aiding and abetting murder . The court held that on DATE , a certain PERSON and the applicant had entered a jewellery shop and that PERSON had taken a shop assistant to another room and shot him dead . The applicant was given a mandatory sentence of life imprisonment . PERSON was tried in GPE and sentenced to CARDINAL half years’ imprisonment .", "The applicant was initially serving his prison sentence in FAC in GPE . He could work , move freely in the building for most of DATE , freely interact with any of the other CARDINAL prisoners , make an appointment with a psychologist , psychiatrist or social worker at any time , follow vocational courses and study programmes , engage in outdoor exercise for TIME a day or more , a wide range of sports activities were available to him , and his cell was ventilated and dark at TIME . He was entitled to apply for conditional release after serving DATE , that is , on DATE .", "On DATE ORG issued an administrative expulsion order against the applicant .", "On DATE ORG of GPE requested GPE to take over the execution of the applicant ’s sentence . The applicant did not give his consent to his transfer . ORG , however , agreed to the transfer .", "On DATE ORG ( krajský soud ) validated the NORP judgment regarding the applicant ’s conviction and converted his sentence to CARDINAL years’ imprisonment . It held that , despite the applicant ’s objection to the transfer , all the conditions of the Convention on ORG , having regard to LAW , had been met . It noted that at the time of the commission of the crime a sentence of DATE imprisonment could have been given under LAW only , inter alia , on the condition that the possibility of the offender ’s rehabilitation was particularly remote . Based on the available evidence , it held that this condition had not been met and thus a sentence of imprisonment of DATE would not be compatible with NORP law .", "ORG ( krajský státní zástupce ) appealed against the decision , requesting the imposition of a sentence of PERCENT imprisonment because of the exceptional degree of danger to society posed by the applicant ’s crime .", "On DATE ORG ( vrchní soud ) quashed ORG judgment and ruled that the applicant should continue to serve his sentence of life imprisonment without any conversion . It held that ORG had not been entitled to consider whether all the conditions for a life sentence had been met , but only to determine whether under NORP law the sentence imposed by the foreign court was at all possible for the crime in question . As it found that LAW generally provided for a sentence of life imprisonment for murder , it held that that sentence must continue to be served in GPE .", "On DATE ORG ( ústavní soud ) dismissed a constitutional appeal by the applicant as manifestly ill - founded . It held that NORP courts could alter a foreign sentence only if the sentence was not envisaged at all under NORP law for the crime in question .", "On DATE the applicant was transferred to GPE and taken into detention pending a court ruling on the execution of his sentence .", "On DATE ORG ruled that the applicant should serve his sentence in a secure prison ( věznice s ostrahou ) . It held that under LAW , the penal position of sentenced persons could not be aggravated by their transfer and that this also applied to conditions of detention . Consequently , the applicant could not serve his sentence in a prison with heightened security ( věznice se zvýšenou ostrahou ) as would normally be the case for prisoners sentenced to life imprisonment .", "The applicant appealed , arguing that his penal position would be aggravated because the conditions of detention in a NORP secure prison were much harsher than in FAC , where he had served his sentence before being transferred .", "On DATE ORG upheld the decision . It held that any disadvantages of a NORP secure prison compared to Straubing prison were offset by the advantages of serving the sentence in the applicant ’s home country , where his mother tongue was spoken and where he had better possibilities of visits .", "Since then the applicant has served his sentence in ORG in a section for life - sentenced prisoners . In that prison he allegedly has not been offered any employment ; he must spend TIME a day in his cell or CARDINAL room on the same floor ; he is allowed TIME , or exceptionally CARDINAL , of outdoor exercise daily in a very small area ; he is able to interact only with CARDINAL other life - sentenced prisoners ; his access to a psychologist or psychiatrist is limited ; he can not follow any vocational or study courses ; his cell is lit TIME a day and it is not possible to open a window in his cell ; and there is no possibility of sports activities except for table tennis in DATE .", "The applicant lodged a constitutional appeal , disagreeing , inter alia , with the advantages of serving his sentence in GPE noted by ORG . He argued that he had already become accustomed to a NORP environment , was fluent in NORP , was visited by people from the outside and could receive parcels without any problem . In comparison , in GPE he was in contact only with his mother , who , however , lived in PERSON , which was QUANTITY away from his prison .", "On DATE ORG dismissed his constitutional appeal as manifestly ill - founded .", "Under LAW of LAW as in force in DATE , an extraordinary sentence of DATE could be imposed by a court only if the degree of danger to society posed by the offender ’s crime was very high and the possibility of rehabilitating the offender was regarded as remote .", "Under LAW , a life sentence could be imposed on an offender who had committed murder where :", "( a ) the degree of danger posed by such a crime to society was extremely high because of the particularly contemptible manner in which the crime was committed , or a particularly contemptible motive on the part of the offender , or a particularly serious result of the crime for which it was difficult to compensate , and ;", "( b ) the imposition of such a sentence was required for the effective protection of society , and ;", "there was no hope that the offender could be rehabilitated by a prison sentence of DATE duration .", "Under LAW of LAW a life - sentenced prisoner is eligible for parole after serving a minimum of DATE of his sentence .", "Under LAW the administering ORG is bound by the legal nature and duration of the sentence as determined by the sentencing ORG . If , however , this sentence is by its nature or duration incompatible with the law of the administering ORG , or its law so requires , that ORG may , by a court or administrative order , adapt the sanction to the punishment or measure prescribed by its own law for a similar offence . As to its nature , the punishment or measure must , as far as possible , correspond with that imposed by the sentence to be enforced . It shall not aggravate , by its nature or duration , the sanction imposed in the sentencing ORG , nor exceed the maximum prescribed by the law of the administering ORG .", "Under LAW , in the case of conversion of a sentence , the competent authority must not aggravate the penal position of the sentenced person , and is not bound by any minimum which the law of the administering ORG may provide for the offence or offences committed .", "Under LAW of LAW , upon being requested by the sentencing ORG , the administering ORG may agree to the transfer of a sentenced person without the consent of that person , where the sentence passed on the latter , or an administrative decision consequential to that sentence , includes an expulsion or deportation order or any other measure as the result of which that person will no longer be allowed to remain in the territory of the sentencing ORG once he or she is released from prison .", "Articles CARDINAL and CARDINAL provide :", "“ This LAW shall be applicable to the enforcement of sentences imposed either before or after its entry into force .", "Any Contracting State may at any time denounce this LAW by means of a notification addressed to the Secretary General of ORG .", "...", "This LAW shall , however , continue to apply to the enforcement of sentences of persons who have been transferred in conformity with the provisions of both the LAW and this LAW before the date on which such denunciation takes effect . ... ”" ]

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[ "The first applicant , PERSON , is a NORP national who was born in DATE and at the relevant time lived in GPE . In DATE or DATE she moved to GPE . The application is submitted by the first applicant on her own behalf and also on behalf of her son PERSON ( “ the second applicant ” ) , a minor , who was born in DATE .", "The first applicant married Mr N. in DATE and gave birth to S. in DATE .", "Later , the relations between the spouses soured , Mr N. became aggressive and on DATE the first applicant left the family home with her son and moved into her GPE apartment . On DATE the first applicant filed for divorce and sought an interim custody order , stating , inter alia , that Mr N. often used offensive language , battered her “ without any reason ” and did not contribute to the household budget .", "On DATE a judge at FAC examined the case file and fixed the date of the first hearing for DATE , without examining the request for an interim order .", "During DATE following the separation , Mr N. visited his son every day and took him to his apartment on DATE , with the first applicant ’s consent .", "On DATE ORG could not proceed with the examination of the divorce case as Mr N. had been taken ill and did not appear .", "On DATE Mr N. did not bring S. home after a walk . He telephoned the first applicant and told her that his son would live with him . For DATE he refused the first applicant ’s requests for meetings or telephone conversations with her son .", "NORP On DATE the first applicant complained to the prosecuting authorities . The relevant prosecutor apparently gave instructions that PERSON N. should be summoned and served with an official warning . That was not done until DATE .", "On DATE the first applicant went to see her son at the kindergarten and took him to her home . In TIME Mr N. telephoned and then appeared outside the first applicant ’s home . He was shouting and banging on the door , thus frightening the child and the first applicant . Mr N. eventually managed to enter the apartment , when the first applicant ’s father came home . He allegedly hit or pushed the first applicant in the presence of her parents and the child . At CARDINAL point Mr ORG seized his son , but the first applicant was trying to hold him . The child was screaming . Eventually , PERSON N. left with the child .", "On DATE the first applicant visited a forensic doctor who noted a small bruise on her face and a bruise on her hip . On DATE she filed a complaint with ORG and enclosed the medical certificate .", "The first applicant also sought the help of a non - governmental organisation assisting female victims of domestic violence . She was offered the possibility to stay with her son in a hostel for such victims in PERSON . On DATE the first applicant collected her son from the kindergarten and travelled with him to PERSON . She spent DATE at the hostel there without disclosing her whereabouts to Mr N.", "Mr N. complained to the local ORG ( see paragraph CARDINAL below ) , stating that the first applicant had abducted their son . The first applicant was summoned by the police . On DATE she returned to GPE and met the district juveniles inspector . She explained that she had been the victim of violence and that her son ’s health was in danger because of the father ’s violent behaviour . It appears that the inspector disbelieved the first applicant ’s version of the events and allegedly insisted that she could be prosecuted for having abducted her son .", "On DATE in the evening Mr N. visited the first applicant in her home , allegedly threatened her and took their son away .", "On DATE , DATE , the juveniles inspector organised a meeting between the first applicant , her former husband and the child . According to the first applicant , the meeting lasted TIME . The child was asked whether he preferred to be with his mother or with his father . The meeting resulted in an oral agreement between the parents , according to which the child would live with his father for DATE and then with his mother for DATE . As a result of this agreement Mr ORG withdrew his complaint for abduction .", "According to the first applicant , the agreement was only implemented for a very limited period .", "In DATE Mr N. allowed contacts between the first applicant and her son . On an unspecified date the child was ill and the first applicant took care of him in Mr N. ’s apartment .", "On DATE the first applicant appeared before ORG for a hearing in the divorce proceedings . She was not legally represented . Mr N. did not appear . His lawyer was present . The first applicant stated that she wished to pursue her claims . The court did not examine the request for an interim order . The first applicant did not raise the issue . The court fixed a time - limit for reconciliation , as required by law , and adjourned the examination of the case until DATE .", "On DATE the police summoned Mr N. and gave him an official warning in relation to the first applicant ’s complaint of CARDINAL DATE ( see paragraph CARDINAL above ) . As a result Mr N. allegedly became aggressive . On DATE , when he brought S. for a visit to his mother ’s apartment , Mr N. reacted angrily to remarks by the first applicant and hit her in their son ’s presence . On DATE the first applicant visited a medical doctor who noted a bruise on her left eyelid and a swollen cheek . She also reported pain in her right wrist .", "On DATE the first applicant complained to the juveniles inspector at the local police station but was told that nothing could be done and that the dispute should be decided by the courts .", "NORP In DATE and DATE the first applicant complained to ORG , stating that they should assist her to obtain the custody of her child and that measures should be taken to protect her son , who was in danger because Mr N. was not taking care of him properly and was aggressive towards her . The first applicant complained that nothing had been done in this respect by the police . In DATE she received replies stating that the matter had been examined and that no unlawful conduct on the part of police officers had been noted . The police had done what they could and the remaining issues concerned a private dispute .", "On DATE the first applicant filed written submissions with ORG reiterating her request for an interim order . She informed the court about the relevant events since DATE and referred to her complaints to the prosecuting authorities . She also stated that her son had been living in conditions which endangered his development . The first applicant sought leave to have CARDINAL witnesses examined in this respect .", "On DATE the judge examined the applicant ’s submissions in private and decided that the request for an interim order should be dealt with on DATE , not at the hearing fixed for CARDINAL DATE .", "On DATE ORG held a hearing in the divorce proceedings . It noted the failure of the parties to reconcile and fixed a hearing on the merits for DATE .", "On DATE ORG held a hearing on the issue of interim measures . Mr N. requested that the files of the prosecutors and the police who had examined the first applicant ’s complaints be admitted in evidence . He stated that those authorities had heard impartial witnesses DATE several neighbours DATE and had convincingly established that the first applicant ’s allegations about physical violence were unfounded . The first applicant ’s lawyer objected , stating that the files could be relevant to the merits of the divorce proceedings but should not be examined in the interim measures procedure . The court decided to adjourn the hearing until DATE in order to allow the production of the ORG files .", "On DATE ORG dealt with the request for an interim order . It heard one witness for each party . The first applicant ’s father , who was heard as a witness , confirmed that Mr N. had been aggressive on CARDINAL occasions and that quarrels often erupted between the child ’s parents . A relative of Mr N. testified that he took good care of the child . The first applicant also presented a written opinion by a psycho - therapist working for the non - governmental organisation whose help she had solicited . The therapist described the first applicant ’s visits to the centre for victims of domestic violence and stated that in her opinion the first applicant had suffered a strong emotional upset as a result of the behaviour of Mr N. and the authorities’ passive attitude . Mr N. disputed the statements contained in the written opinion . The court decided that that was tantamount to contesting the authenticity of a document and invited the parties to adduce evidence in this respect . Having regard to the need to give the parties time to adduce such evidence and noting that the ORG files concerning the applicants’ complaints had not been transmitted to it , ORG adjourned the matter until DATE . The hearing listed for DATE was later adjourned on unspecified grounds .", "The next hearing was held on DATE . In relation to the proceedings concerning the authenticity of the psycho - therapist ’s written opinion , the first applicant ’s lawyer presented documents demonstrating that the non - governmental organisation for which the therapist worked had been registered in DATE . Mr N. ’s lawyer stated that in accordance with legislation in force since DATE non - governmental organisations needed re - registration . On that basis he objected to the admission in evidence of the written opinion of the psycho - therapist . The court interpreted that objection as a challenge to the authenticity of the registration documents and invited the parties to adduce evidence in that respect .", "At that point , the first applicant withdrew her request and asked the court to rule on the merits of the divorce claims , including the child custody claim . Thereupon , the court terminated the interim measures proceedings . It then heard CARDINAL witnesses . A neighbour testified that she had heard the spouses quarrelling often in the past and had seen bruises on the first applicant ’s body . The latter had complained that Mr N. battered her . A colleague of Mr N. testified that he had never seen him being aggressive . The court also admitted in evidence the ORG files concerning the first applicant ’s complaints submitted in DATE . As the parties sought leave to examine other witnesses , the court adjourned the hearing until DATE .", "From DATE the first applicant could only see her son at his kindergarten as the visits to Mr N. ’s home created tension . On DATE she collected her son and brought him to her home . Mr N. complained to the prosecution authorities and the police and also wrote to the judge dealing with the divorce proceedings . As a result , on DATE and DATE the first applicant was summoned by the police and given official warnings . According to the first applicant , Mr N. also threatened her with physical violence but she kept the child . According to Mr N. , on DATE in the evening he was attacked by men hired by the first applicant , in her presence .", "The last hearing in the divorce proceedings was held on DATE . In accordance with LAW ( see paragraph CARDINAL below ) , an expert of the newly created local ORG gave an opinion after having studied the file and met the child . He reported that the child was afraid of his father as he had battered his mother and that the child preferred to live with his mother .", "By judgment of CARDINAL DATE ORG pronounced the divorce and found that both spouses had been responsible for the failure of their marriage . The court further considered that both parties had been good parents but that in view of the low age of the boy he needed his mother . Therefore , the first applicant obtained custody of her child and PERSON N. was given visiting rights .", "Mr N. appealed , arguing that the allegations that he had been violent were untrue and that he had always cared better for his child .", "In the appeal proceedings ORG held a hearing on DATE . It heard CARDINAL witnesses who confirmed Mr N. ’s aggressive behaviour .", "On DATE the ORG upheld the lower court ’s judgment but considered that there was ample evidence that Mr N. had been aggressive and had battered the first applicant during their marriage . Such behaviour was a bad example for a young boy to witness . The first applicant was therefore better suited to raise the child .", "On DATE the first applicant visited Mr N. ’s apartment , accompanied by CARDINAL friends , to collect her belongings . Her former husband became aggressive and battered her . On DATE the first applicant visited a forensic doctor who noted bruises on her face , right arm and armpit and her left hip . She complained to the prosecution authorities , which by decisions of DATE and DATE refused to institute criminal proceedings against Mr N. , noting that it was open to the first applicant to bring private prosecution proceedings , as the alleged injuries fell into the category of light bodily injuries .", "In accordance with LAW , a court examining a divorce case shall order interim child custody measures upon request of a party to the proceedings .", "ORG has held that in principle no such measures should be ordered during the mandatory DATE reconciliation period except where the interest of the children so requires and , in particular , where delaying them may adversely affect the children ’s development and upbringing ( procedural decision no . CARDINAL of DATE in case no . CARDINAL/CARDINAL ) .", "Article CARDINAL § CARDINAL of LAW provides that disputes about child custody between parents living apart may be submitted for examination to the local district court . This provision concerns disputes that have not been submitted for adjudication in the context of divorce or other proceedings ( argument from LAW ) .", "A party to pending civil proceedings may file an appeal against delays in the proceedings , in accordance with Article CARDINALa of the Code of Civil Procedure . The appeal is examined by the President of the upper court , who may order specific measures to speed up the proceedings . It is unclear whether an appeal against delays may also be directed against delays in the examination of requests for interim measures .", "Sections CARDINAL and CARDINAL of the Antisocial Behaviour of Minors Act DATE , amended , set up ORG at municipal level . The Units are staffed by inspectors appointed by ORG . Their task is to assist the prosecution authorities and the police in the investigation of offences committed by minors and also in the investigation of offences in which minors were victims . Juveniles Pedagogic Units have no power to issue binding orders on child custody and access issues .", "Under LAW , in conjunction with Articles CARDINAL and CARDINAL of LAW , criminal proceedings in respect of “ medium bodily injury ” wilfully inflicted by a spouse , parent , child , brother or sister of the victim may only be instituted by the victim . According to LAW , injuries having long - lasting repercussions on one ’s health without being life - threatening or injuries that may be life - threatening but do not result in long - lasting repercussions are considered “ medium bodily injuries ” . Within the same category fall injuries causing long - lasting difficulties to the hearing , sight or limb movement , disfiguring of the face or other body parts , as well as injuries such as a broken jaw or teeth that cause difficulties in chewing and speaking .", "Under LAW , in conjunction with Articles CARDINAL - CARDINAL of LAW , criminal proceedings in respect of wilfully inflicted “ light bodily injury ” may only be instituted by the victim , except where a ORG official is involved or in cases of repeated offences . According to LAW , injuries other than those considered as heavy or medium bodily injuries fall within the category of “ light bodily injuries ” . The courts have held that facial bruises , a broken nose and head contusions without loss of consciousness are examples of light bodily injuries ( ORG interpretative circular ORG № CARDINAL , CARDINAL ) .", "Under LAW , where criminal proceedings are instituted by the victim , he or she acts as private prosecutor . The proceedings are discontinued if the victim fails to appear when summoned or abandons the case .", "LAW , which came into force on DATE , instituted a ORG and municipal ORG empowered , inter alia , to order protection measures in respect of children in danger . In accordance with the transitory provisions of the LAW , the ORG and the ORG became operational not earlier than in DATE , when the relevant regulations and instructions were adopted .", "The Protection Against Domestic Violence Act , which was enacted in DATE , provides for administrative and policing measures in cases of domestic violence . In particular , the relevant court may issue injunctions to remove the perpetrator from the common home , ban him from approaching the victim ’s home , workplace or place of social contacts , temporarily remove the child from the custody of the perpetrator and impose compulsory education programs . Failure to comply with the measures imposed by the court may result in fines , arrest and prosecution .", "In its Recommendation Rec(CARDINAL)CARDINAL of DATE on the protection of women against violence , ORG stated , inter alia , that Member States should introduce , develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims , support and assistance , adjustment of the criminal and civil law , raising of public awareness , training for professionals confronted with violence against women and prevention .", "ORG recommended , in particular , that Member states should penalise serious violence against women such as sexual violence and rape , abuse of the vulnerability of pregnant , defenceless , ill , handicapped or dependent victims , or abuse of the position of the perpetrator . The recommendation also stated that Member states should ensure that all victims of violence are able to institute proceedings , make provisions to ensure that criminal proceedings can be initiated by the public prosecutor , encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest , ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children ’s rights are protected during proceedings .", "With regard to violence within the family , ORG recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order , inter alia , to enable the judiciary to adopt interim measures aimed at protecting victims , to ban the perpetrator from contacting , communicating with or approaching the victim , or residing in or entering defined areas , to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police , medical and social services .", "ORG on the Elimination of Violence against Women ( DATE ) , in its LAW ) , urges GPE to “ exercise due diligence to prevent , investigate and , in accordance with national legislation , punish acts of violence against women , whether those acts are perpetrated by the ORG or private persons ” .", "NORP In his third report , of DATE , to ORG ( E / CN.CARDINAL/CARDINAL/CARDINAL ) , the Special Rapporteur on violence against women considered that there is a rule of customary international law that “ obliges GPE to prevent and respond to acts of violence against women with due diligence ” . This conclusion was based mainly on analysis of developments in the case - law of several international bodies , including this ORG ( reference to PERSON v. the GPE , judgment of DATE , Reports of Judgments and Decisions DATE ) , ORG ( reference to the case of PERSON v. GPE ) , ORG ( reference to Report no . CARDINAL/CARDINAL , Case CARDINAL , PERSON Penha PERSON ( GPE ) ) and the committee monitoring LAW on LAW ( reference to the case of GPE v GPE DATE ) ." ]

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[ "The applicants were born in DATE and DATE respectively . They were shareholders in CARDINAL limited liability companies . It appears that at least PERSON was also in a management position in those companies . Both companies were in the process of being wound up from DATE .", "W. , a lawyer working for the bank which was the main creditor of the companies , was appointed as the official receiver to control the assets of the companies . Having received a special auditor ’s reports about the companies PERSON , on DATE , requested the police to investigate whether offences had been committed in the companies before they went into liquidation . The police interview of the official receiver began on DATE and continued in DATE . PERSON was questioned by the police for the first time on DATE . DATE he was also arrested and a large number of documents were seized from both the applicants . ORG was questioned by the police on DATE .", "On DATE ORG ( korkein oikeus , högsta domstolen ) revoked the seizure of the documents , as requested by GPE , as the time - limit of DATE had passed since they had been seized and no charges had been brought against the applicants during that time . The decision became a precedent ( ORG CARDINAL:CARDINAL ) .", "The applicants were questioned several times in the course of the investigations during the period from DATE until DATE . It appears that the police investigations concerning the CARDINAL companies came to an end in DATE and DATE or DATE respectively .", "S.E. petitioned the Deputy Parliamentary Ombudsman , who in her decision of CARDINAL DATE took the view that the pre - trial investigations should have been speedier .", "The applicants were charged with offences as dishonest debtors . Writs of summons were served upon LOC on DATE and on CARDINAL DATE and upon ORG on CARDINAL DATE . CARDINAL oral hearings were held in GPE ( käräjäoikeus , tingsrätten ) on DATE , CARDINAL DATE and DATE . PERSON was absent from the first hearing due to a lawful impediment . At the second hearing the complainants requested a deferral which was granted .", "On DATE ORG ruled inadmissible the charges brought against the applicants , without considering their merits , on the grounds of their being in breach of procedural requirements . ORG found that the complainants , i.e. the meeting of the debtors , had not requested that charges be brought against the applicants . The mere fact that the official receiver had made a request to that effect was not sufficient , as the practice at the time of the alleged offences required that the decision should be made by the meeting of the debtors . ORG noted , however , that chapter CARDINAL , section CARDINAL ( CARDINAL ) of LAW ( rikoslaki , strafflagen ) , which had entered into force after the commission of the alleged offences , allowed for the official receiver to request a prosecution . ORG concluded that although the provision was of a procedural nature and as such applicable to offences committed prior to its entry into force , applying the provision in this case would lead to an unfavourable outcome for the applicants . Thus , ORG decided not to apply the new provision , and accordingly , not to consider the merits of the charges .", "NORP In DATE the public prosecutor , the complainants and GPE appealed . On DATE ORG ( hovioikeus , hovrätten ) found that the official receiver had been entitled to request criminal proceedings against the applicants under chapter CARDINAL , section CARDINAL ( CARDINAL ) of LAW , as the application of that provision in the instant case neither affected the period of limitation nor subjected the applicants to a stricter criminal liability . ORG revoked ORG decision and remitted the case .", "On DATE the applicants requested leave to appeal . On DATE ORG granted them leave to appeal and invited the observations of the other parties . On DATE ORG rejected the ORG appeal for substantially the same reasons as those given by ORG . The decision became a precedent ( ORG CARDINAL:CARDINAL ) .", "On DATE the applicants lodged an application for an annulment . Further , they requested on DATE that ORG postpone the consideration of the annulment until ORG had given judgment and as ORG on DATE had informed them that the case would be decided shortly , they requested again that the application be stayed . However , on DATE they withdrew the application for an annulment .", "Meanwhile , on CARDINAL DATE ORG informed the parties that the case would be restored to its case - list . It was , however , adjourned several times as there were settlement negotiations going on between the applicants and the complainants . The time - limit for submission of observations was extended until DATE upon request of the public prosecutor .", "On DATE a contract was signed between the complainants and the applicants , agreeing that they had no claims , either civil or criminal , against each other on the basis of the events mentioned above . According to the Government , the parties reached an agreement on compensation , whereas the applicants denied that the agreement concerned any form of compensation .", "On DATE the public prosecutor informed ORG that he wanted to withdraw all the charges against the applicants , finding that his right to bring charges had ceased to exist as the complainants had withdrawn their claims .", "NORP However , at the oral hearing held on DATE in the ORG PERSON requested notwithstanding the withdrawal that it be examined whether the ORG prosecution request had been specific enough for charges to be brought and whether the period of limitation on the right to bring charges had become time - barred . The public prosecutor noted that CARDINAL witnesses had died since the police investigations , and that he might have withdrawn the charges in any event as the proceedings had already lasted an unreasonably long time . It was announced by ORG and the complainants that the case had been settled as far as they were concerned .", "ORG found on DATE that the public prosecutor could not withdraw the charges if there was an objection and that GPE had the right to a decision in the matter . The case was adjourned until DATE as far as LOC was concerned . The charges against ORG were removed from the docket and the decision was not appealed against .", "On DATE ORG , having held an oral hearing , rejected CARDINAL of the charges as time - barred and ruled the rest inadmissible , without considering their merits . In so far as ORG refused to consider the merits , it found that the complainants had not particularised their allegations when reporting the alleged offences to the police in DATE or during the questioning of the official receiver in DATE , and that the time - limit for requesting prosecution , as stipulated by LAW ( rikoslain voimaanpanosta annettu asetus , förordningen om införande av strafflagen ) , had thus been exceeded .", "The public prosecutor and ORG appealed against ORG decision not to consider part of the charges . The case became pending before ORG in DATE .", "On DATE ORG , noting that GPE had a right to have the question of guilt examined and as part of that issue also whether the prosecution procedure had been in accordance with the law , found that the complainants had particularised their allegations sufficiently within the period of limitation , and therefore revoked the ORG decision to rule the charges inadmissible . Instead , ORG removed the charges from the docket as the applicants and the complainants had reached a settlement . LAW , LAW , as in force until DATE , provided that a debtor could not be convicted if he had satisfied his creditor .", "On DATE PERSON applied to ORG for leave to appeal . The case was still pending before ORG when ORG decided to give notice of the application to the respondent ORG . On DATE ORG refused GPE leave to appeal ." ]

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[ "The applicants , who are former military students , were born in DATE , DATE and DATE respectively and live in GPE , PERSON and ORG .", "NORP On different dates the applicants were expelled from military schools following disciplinary decisions , which held that the applicants did not possess the requisite attributes of a military student as defined in the relevant legislations . The applicants were not provided with any further information regarding the reasons for their expulsions .", "The applicants subsequently brought separate actions before ORG against ORG , requesting this court to quash the disciplinary decisions ordering their expulsions .", "ORG submitted certain documents and information to ORG during the course of the proceedings , which were classified as “ secret documents ” under LAW no . DATE on ORG . These documents were not disclosed to the applicants .", "On DATE , CARDINAL DATE and DATE , respectively , ORG rejected the ORG request . The judgment of DATE was served on the third applicant on DATE . Citing the relevant legislation , ORG held that a student could be lawfully expelled from a military school by a disciplinary board decision if he was found to have lost the attributes of a military student during the course of his studies or if it became apparent at such time that he did not possess the necessary qualifications from the start . The applicants , who were found to lack the requisite attributes of a military student following a secret security investigation conducted on them and their families , were thus lawfully expelled from their schools .", "On DATE and CARDINAL DATE , respectively , ORG rejected the first and second applicants’ rectification request . The third applicant did not seek rectification .", "A description of the relevant domestic law can be found in the decision of GPE v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) ." ]

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[ "The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON ( GPE ) . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE ( GPE ) .", "On DATE the applicant married a NORP national . The marriage produced a son and a daughter , born in DATE and DATE respectively . The applicant and his wife have been living apart since DATE .", "On DATE proceedings for the award of parental responsibility were instituted in ORG ( ORG ) .", "On DATE ORG provisionally granted the applicant the right to determine the children ’s place of residence while their parents lived apart .", "At a hearing in FAC on DATE the children ’s mother stated that she had no intention of unlawfully leaving GPE with the children .", "On DATE ORG consequently revoked its decision of DATE and restored the joint exercise of parental responsibility .", "On DATE , without the applicant ’s knowledge and against his wishes , the children ’s mother removed them from the family home in order to settle with them at her GPE home in FAC ( GPE ) .", "On DATE ORG again granted the applicant the right to determine the children ’s place of residence and ordered their mother to return them .", "On DATE ORG ruled that the mother ’s removal of the children to a different country had been wrongful within the meaning of LAW of DATE on ORG .", "On DATE the applicant had the children abducted in GPE and brought back to him in GPE .", "On DATE ORG decided to stay the custody proceedings pending the final decision on an application by the mother for the children ’s return .", "On DATE ORG dismissed an application by the mother for recognition of an order made on DATE by a NORP court ( the PERSON tribunal de grande instance ) and for the return of the children . The mother appealed against that decision .", "On DATE ORG ( Oberlandesgericht ) ordered the return of the children to their mother on the basis of LAW of DATE .", "On DATE the applicant lodged a constitutional appeal ( ORG ) and applied for a stay of execution of the decision of CARDINAL DATE .", "On DATE ORG ( Bundesverfassungsgericht ) , sitting as a panel of CARDINAL judges , allowed the application for a stay of execution , thereby provisionally maintaining the applicant ’s home as the children ’s place of residence .", "On DATE ORG quashed the decision of DATE and remitted the case to ORG . It held that the children should have been represented by a guardian in the appeal proceedings . Furthermore , ORG had failed to consider the interests of the children in the light of paragraph CARDINAL ( b ) , and of paragraphs CARDINAL and CARDINAL taken together , of LAW DATE . In ORG view , ordering successive removals of children when first one and then the other parent applied for their return ran counter to the aims of that LAW if the children ’s return placed them in an intolerable situation , unless the court concerned found that there were particular facts justifying their return in spite of the risks entailed by a further removal .", "On DATE ORG appointed an expert to assess the state of both GPE relations with the children , with a view in particular to determining which parent should be awarded custody . ORG also appointed a lawyer of ORG to protect the children ’s interests .", "On DATE the expert submitted his report . In it he concluded that both parents were capable of bringing up the children , although he stressed the good relationship between the applicant and his children . As regards the children ’s place of residence , the expert considered that the desire expressed by the applicant ’s son to stay with his father could be explained by the fact that the applicant had influenced his son and undermined his image of his mother , thereby provoking a conflict of loyalties . It had emerged from exploratory discussions , however , that the son had pleasant memories of his stay in GPE , had made friends through leisure activities such as judo , and had got on well with his maternal grandparents . His grandfather had apparently once kicked him , but it had transpired that he had only been teasing him and had not caused any harm . The expert observed that there were significant differences between the GPE respective approaches to bringing up their children . The mother took great care to set limits for the children , while the applicant adopted a more liberal attitude towards them , especially towards his son , who was used to having his every whim satisfied . The expert considered that such an approach could have a negative effect in the long term , as the son might become intolerant of frustration and might experience problems . In the expert ’s opinion , the children ’s mother was in a better position to ensure their well - being because she did not work , and if she was ever temporarily unable to look after them , they could be looked after , supervised and supported by the members of her family , whom they had known for a long time . Where young children were concerned , an arrangement of that kind was more beneficial than employing someone to look after them . Having regard , on the one hand , to the applicant ’s age and approach to child - raising , and , on the other hand , to the fact that the children ’s mother , who did not have a job , was able to devote herself entirely and exclusively to them , the expert expressed the view that the children should be returned to their mother . He considered that DATE they had previously spent with her – a subjectively long period for DATE had enabled them to settle into those new surroundings .", "On DATE ORG decided to confer on ORG ( PERSON ) the right to determine the children ’s place of residence pending its ruling on the merits . ORG subsequently recommended that the children should live with their father .", "On DATE the expert followed up his report with comments on objections submitted by the applicant .", "On CARDINAL and CARDINAL DATE the applicant challenged the president of the relevant division of ORG , another judge of that court and a judge of ORG for bias . He accused ORG judges of failing to take sufficient account of ORG decision by failing to draw a distinction between the application for transfer of residence under LAW DATE and the assessment of the children ’s interests , the latter task being the responsibility of the judges who had to determine the interim measures to be taken in respect of the children after the separation of their parents . He further argued that the judges in question had contravened the principle of impartiality to his disadvantage by describing his attitude as uncooperative . Their bias was also evident , in his submission , from the questions they had put to the expert , from their refusal to allow his requests for an adjournment and for a say in the choice of expert , from the delay in serving judicial decisions and from the fact that a “ wanted ” notice had been issued on account of his failure to attend a hearing .", "On DATE ORG dismissed the challenges as unfounded .", "On DATE the applicant applied to ORG for a stay of execution of ORG decision if it ruled in favour of returning the children to their mother in GPE , pending ORG decision on the matter .", "On DATE ORG , sitting as a panel of CARDINAL judges , allowed the application .", "On DATE , having heard evidence from the parents , the children and the expert , ORG ordered the return of the children to their mother at her home in GPE , the ORG of their habitual residence for the purposes of LAW of DATE . It held that the children ’s return to their mother was justified under LAW DATE as their removal to GPE by their father had been wrongful within the meaning of LAW . Under that provision , the removal of a child was to be considered wrongful where it was in breach of rights of custody attributed to a person , either jointly or alone , under the law of the State in which the child had been habitually resident immediately before the removal , and where at the time of removal those rights were actually being exercised . ORG observed that the CARDINAL children had been habitually resident in GPE before being removed to GPE on DATE . At the time of the removal they had been resident in GPE for DATE . They had been living with their mother in a flat in their GPE house in GPE . They had adapted well to their new surroundings . As a rule , a stay of DATE was sufficient for a place of residence to be considered habitual . The fact that the mother had taken the children to GPE against their father ’s wishes did not preclude her home in GPE being established as their habitual residence . In general , it was important for children to adapt to living conditions in their new place of residence , and that had occurred in the instant case . ORG added that contact between the parents remained desirable , and they would have to abate their mutual distrust .", "In accordance with LAW DATE , ORG took account of the order issued by the PERSON tribunal de grande instance on DATE in determining whether there had been a wrongful removal , although it did not avail itself of the specific procedures for recognition of that decision , which had ordered the joint exercise of parental responsibility by both parents . ORG further held that the conditions laid down in LAW ( b ) of LAW DATE were not satisfied in the instant case . By virtue of that provision , the judicial authority of the requested ORG was not bound to order the return of children if the person opposing that measure established that there was a grave risk that the child ’s return would expose him or her to physical or psychological harm or otherwise place him or her in an intolerable situation .", "On the basis of the report drawn up by the expert it had appointed and the statements made by the expert at the hearing , ORG , in accordance with the wishes of the children ’s lawyer , concluded that the return of the children to their mother would be in their interests . It considered that there was no need to order a second expert opinion , since the applicant ’s criticisms had merely referred to scientific theories without casting doubt on the expert ’s findings , which , in its view , were clear , consistent and well - founded .", "On DATE ORG , sitting as a panel of CARDINAL judges , decided not to entertain a constitutional appeal lodged by the applicant against that decision .", "On DATE the mother brought the CARDINAL children back to GPE .", "On DATE the children ’s mother instituted divorce proceedings in the PERSON tribunal de grande instance .", "On DATE the family - affairs judge of that court authorised her to live apart from her husband , together with her children , at her home in GPE .", "On DATE ORG and the applicant applied to the LOC tribunal de grande instance , requesting it to order the immediate return of the children to their home in GPE , pursuant to LAW DATE . The applicant further requested that ORG decision of DATE , provisionally granting the applicant the right to determine where the children should live , be declared enforceable or , at the least , recognised in GPE .", "On DATE the family - affairs judge of the PERSON tribunal de grande instance refused to order the return of the children to GPE . Although he considered the mother ’s removal of the children to have been wrongful , he stated that returning the children to GPE would entail a grave risk for them and would in any case place them in an intolerable situation within the meaning of LAW ( b ) of LAW . Referring to the case - law of ORG , to the effect that a grave risk or an intolerable situation could also result from a further change in the children ’s living conditions , the judge concluded that both the separation of the children from their mother and the separation of the brother and sister from each other would cause an immediate risk of psychological harm , and that the sudden return of the children to GPE would place them in an intolerable situation , regard being had to their tender age ( CARDINAL being DATE and the other CARDINAL ) . That situation would be aggravated by the crisis which the couple were undergoing and by the total lack of certainty as to the length of the mother ’s separation from her children .", "The applicant appealed against that decision .", "On DATE the family - affairs judge of the PERSON tribunal de grande instance issued an order pronouncing the failure of the conciliation process in the divorce proceedings . He decided that parental responsibility should be exercised jointly by the CARDINAL parents and that the children should be habitually resident with their mother , and granted the father access and staying access , specifying that those rights would not become enforceable until the date on which the order pronouncing the failure of the conciliation process was declared enforceable in GPE .", "In a judgment of CARDINAL DATE ORG upheld the order of DATE . Noting that a grave risk of harm or of an intolerable situation within the meaning of LAW ( b ) of LAW of DATE cited as justification for retaining children who had been removed – might be entailed by a further change in the children ’s living conditions , ORG confirmed that separating a CARDINAL - and - a - half - year - old child from her mother and a brother and sister from each other would cause an immediate risk of psychological harm , and that the sudden return of the children to GPE would place them in an intolerable situation in view of their tender age . It further noted that the mother , who did not work , had always looked after the QUANTITY children ’s everyday needs since their birth and that their return to GPE would entail the end of that state of affairs , especially as the mother ’s highly precarious financial situation gave reason to fear that she would be unable to make regular use of the access and staying access to which she would be entitled . ORG declared inadmissible the applicant ’s application to have the NORP court ’s decision of DATE ( provisionally granting him the right to determine where the CARDINAL children should live ) recognised or declared enforceable . It also held that that application was ill - founded .", "The applicant appealed on points of law against that judgment within the statutory period of DATE . He argued in particular that , on the basis of LAW of DATE , the judge should have acted swiftly to end the patently illegal situation resulting from the children ’s wrongful removal and could only have refused their immediate return if they faced a grave risk , the assessment of which was quite distinct from the assessment of the children ’s best interests with regard to a custody measure . In basing its decision on the children ’s interest in staying with their mother , ORG had , in the applicant ’s submission , acted as a court of first instance and exceeded its jurisdiction , in breach of Articles CARDINAL , CARDINAL and DATE of LAW of DATE .", "The applicant further submitted that the immediate return of a wrongfully removed child , even CARDINAL of tender age , to live with his lawful father in the same conditions as had existed before the wrongful removal could not in any circumstances be regarded as constituting an intolerable situation within the meaning of LAW .", "On DATE the applicant had the children abducted in GPE and brought back to him in GPE . The PERSON investigating judge subsequently began a criminal investigation in respect of the applicant for abduction of a minor by a gang and criminal conspiracy .", "On DATE ORG dismissed the applicant ’s appeal on points of law .", "On DATE the children ’s mother applied to have the father ’s access and staying access revoked as a result of the children ’s abduction .", "In an order of DATE the PERSON tribunal de grande instance suspended the applicant ’s access and staying access in respect of his daughter during DATE and granted him access and staying access in respect of his son .", "It appears from the file that , notwithstanding the order of DATE , the CARDINAL children spent DATE of their DATE at their father ’s home .", "On DATE the applicant learned from his son that the children ’s mother was planning to move to GPE , where she had found a job .", "On an unspecified date the applicant applied to the PERSON tribunal de grande instance to have the children ’s place of residence transferred to his home in GPE . He argued that their mother did not have sufficient time available to ensure the children ’s day - to - day upbringing and to give them the care and attention they needed .", "On DATE the PERSON tribunal de grande instance dismissed that application . It pointed out that the children ’s return to GPE had been ordered by ORG in the light of the various findings set out in the expert ’s psychological report . It observed that the mother ’s physical availability , which had been taken into account at the time , had not been the sole factor determining where the children should live . After the applicant had abducted the children , their mother had been unable to see them for DATE as a result of his unreasonable attitude . In that context , the children had suffered severe psychological trauma . Since they had returned to their mother , she had found a job , a fact for which she could not be reproached . Although she was now in employment , she had managed , like any other working woman , to organise her children ’s everyday lives satisfactorily ; the children appeared to be thriving in her company . They attended schools not far from their home and their mother worked in the same area . There was nothing in the file to indicate that the mother ’s new circumstances were detrimental to the children or were responsible for the son ’s difficulties at school or the daughter ’s psychological problems . Those problems had existed before and were the consequence not of the mother ’s personal situation but of the conflict between the parents , which was still extremely intense . Noting , however , that since DATE the family situation had calmed down considerably , the court granted the applicant access and staying access in respect of both children , subject to the conditions laid down in the order of DATE pronouncing the failure of the conciliation process . It also set the amount of maintenance and the applicant ’s contribution to his children ’s upkeep and education .", "Article CARDINAL", "“ The objects of the present Convention are :", "( a ) to secure the prompt return of children wrongfully removed to or retained in any ORG ; and", "( b ) to ensure that rights of custody and of access under the law of CARDINAL ORG are effectively respected in GPE . ”", "Article CARDINAL", "“ The removal or the retention of a child is to be considered wrongful where :", "( a ) it is in breach of rights of custody attributed to a person , an institution or any other body , either jointly or alone , under the law of the ORG in which the child was habitually resident immediately before the removal or retention ; and", "( b ) at the time of removal or retention those rights were actually exercised , either jointly or alone , or would have been so exercised but for the removal or retention . ”", "The rights of custody mentioned in sub - paragraph ( a ) above may arise in particular by operation of law or by reason of a judicial or administrative decision , or by reason of an agreement having legal effect under the law of that ORG . ”", "Article CARDINAL", "“ Where a child has been wrongfully removed or retained in terms of LAW and , at the date of the commencement of the proceedings before the judicial or administrative authority of ORG where the child is , a period of DATE has elapsed from the date of the wrongful removal or retention , the authority concerned shall order the return of the child forthwith .", "The judicial or administrative authority , even where the proceedings have been commenced after the expiration of DATE referred to in the preceding paragraph , shall also order the return of the child , unless it is demonstrated that the child is now settled in its new environment .", "Where the judicial or administrative authority in the requested ORG has reason to believe that the child has been taken to another ORG , it may stay the proceedings or dismiss the application for the return of the child . ”", "LAW", "“ Notwithstanding the provisions of DATE , the judicial or administrative authority of the requested ORG is not bound to order the return of the child if the person , institution or other body which opposes its return establishes that :", "( a ) the person , institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention , or had consented to or subsequently acquiesced in the removal or retention ; or", "( b ) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation .", "The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views .", "In considering the circumstances referred to in this LAW , the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by ORG or other competent authority of the child ’s habitual residence . ”", "Article CARDINAL", "“ A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue . ”" ]

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[ "ORG The applicant , Mr PERSON , was born on DATE and is a NORP national . He is currently detained in prison in GPE pending extradition to GPE to face charges of murder in the GPE of GPE .", "ORG The homicides in question were committed in GPE , GPE , in DATE . The victims , PERSON ( aged DATE ) and PERSON ( aged DATE ) , were the parents of the applicant ’s girlfriend , PERSON , who is a NORP national . Death in each case was the result of multiple and massive stab and slash wounds to the neck , throat and body . At the time the applicant and PERSON , aged DATE and CARDINAL respectively , were students at ORG . They disappeared together from GPE in DATE , but were arrested in GPE in DATE in connection with cheque fraud .", "ORG The applicant was interviewed in GPE DATE by a police investigator from ORG of GPE . In a sworn affidavit dated DATE the investigator recorded the applicant as having admitted the killings in his presence and in that of CARDINAL GPE police officers . The applicant had stated that he was in love with Miss PERSON but that her parents were opposed to the relationship . He and Miss PERSON had therefore planned to kill them . They rented a car in GPE and travelled to GPE where they set up an alibi . The applicant then went to the GPE house , discussed the relationship with them and , when they told him that they would do anything to prevent it , a row developed during which he killed them with a knife .", "On DATE a grand jury of ORG of GPE indicted him on charges of murdering the ORG parents . The charges alleged capital murder of both of them and the separate non - capital murders of each .", "ORG On DATE the Government of GPE requested the applicant ’s and Miss PERSON ’s extradition under the terms of LAW of DATE between GPE and GPE ( see paragraph CARDINAL below ) . On DATE a Magistrate at FAC was required by the Secretary of ORG to issue a warrant for the applicant ’s arrest under the provisions of section CARDINAL of LAW ( see paragraph CARDINAL below ) . The applicant was subsequently arrested on DATE at FAC after serving a prison sentence for cheque fraud .", "ORG On DATE ORG in GPE addressed a request to GPE authorities in the following terms :", "\" Because the death penalty has been abolished in GPE , the ORG has been instructed to seek an assurance , in accordance with the terms of ... LAW , that , in the event of Mr PERSON being surrendered and being convicted of the crimes for which he has been indicted ... , the death penalty , if imposed , will not be carried out .", "Should it not be possible on constitutional grounds for ORG to give such an assurance , GPE authorities ask that ORG undertake to recommend to the appropriate authorities that the death penalty should not be imposed or , if imposed , should not be executed . \"", "ORG On DATE the applicant was interviewed in prison by a NORP prosecutor ( PERSON ) from GPE . In a sworn witness statement the prosecutor recorded the applicant as having said , inter alia , that \" he had never had the intention of killing PERSON and PERSON and ... he could only remember having inflicted wounds at the neck on PERSON and PERSON which must have had something to do with their dying later \" ; and that in DATE \" there had been no talk whatsoever [ between him and PERSON ] about killing PERSON ’s parents \" . The prosecutor also referred to documents which had been put at his disposal , for example the statements made by the applicant to the NORP police investigator , the autopsy reports and CARDINAL psychiatric reports on the applicant ( see paragraph CARDINAL below ) .", "On DATE the local court in GPE issued a warrant for the applicant ’s arrest in respect of the alleged murders . On DATE the Government of GPE requested his extradition to GPE under LAW of DATE between GPE and GPE ( see paragraph CARDINAL below ) . The Secretary of ORG was then advised by ORG that , although the NORP request contained proof that NORP courts had jurisdiction to try the applicant , the evidence submitted , since it consisted solely of the admissions made by the applicant to the GPE prosecutor in the absence of a caution , did not amount to a prima facie case against him and that a magistrate would not be able under LAW ( see paragraph CARDINAL below ) to commit him to await extradition to GPE on the strength of admissions obtained in such circumstances .", "ORG In a letter dated DATE to the Director of ORG , ORG , ORG , the Attorney for GPE , GPE ( Mr PERSON ) stated that , on the assumption that the applicant could not be tried in GPE on the basis of admissions alone , there was no means of compelling witnesses from GPE to appear in a criminal court in GPE . On DATE GPE , by diplomatic note , requested the applicant ’s extradition to GPE in preference to GPE .", "ORG On CARDINAL DATE PERSON was surrendered for extradition to GPE . After pleading guilty on DATE as an accessory to the murder of her parents , she was sentenced on DATE to DATE imprisonment ( DATE on each count of murder ) .", "ORG On DATE the ORG informed GPE that GPE had earlier \" submitted a request , supported by prima facie evidence , for the extradition of PERSON . ORG notified ORG request \" . They further indicated that they had sought an assurance from GPE authorities on the question of the death penalty and that \" in the event that the court commits PERSON , his surrender to GPE authorities would be subject to the receipt of satisfactory assurances on this matter \" .", "ORG On DATE Mr PERSON swore an affidavit in his capacity as Attorney for GPE , in which he certified as follows :", "\" I hereby certify that should PERSON be convicted of the offence of capital murder as charged in GPE , GPE ... a representation will be made in the name of GPE to the judge at the time of sentencing that it is the wish of GPE that the death penalty should not be imposed or carried out . \"", "This assurance was transmitted to ORG under cover of a diplomatic note on DATE . It was repeated in the same terms in a further affidavit from Mr PERSON sworn on DATE and forwarded to GPE by diplomatic note on CARDINAL DATE . In the same note ORG of GPE undertook to ensure that the commitment of the appropriate authorities of the GPE of GPE to make representations on behalf of GPE would be honoured .", "During the course of the present proceedings the GPE authorities informed ORG that Mr PERSON was not planning to provide any further assurances and intended to seek the death penalty in Mr PERSON ’s case because the evidence , in his determination , supported such action .", "ORG On DATE at the ORG committal proceedings took place before the Chief PERSON .", "The Government of GPE adduced evidence that on TIME the applicant killed PERSON and PERSON at their home in GPE , GPE . In particular , evidence was given of the applicant ’s own admissions as recorded in the affidavit of the GPE police investigator ( see paragraph CARDINAL above ) .", "On behalf of the applicant psychiatric evidence was adduced from a consultant forensic psychiatrist ( report dated DATE by Dr PERSON ) that he was immature and inexperienced and had lost his personal identity in a symbiotic relationship with his girlfriend - a powerful , persuasive and disturbed young woman . The psychiatric report concluded :", "\" There existed between Miss PERSON and PERSON a ‘ folie à deux’ , in which the most disturbed partner was PERSON . ...", "At the time of the offence , it is my opinion that PERSON was suffering from [ such ] an abnormality of mind due to inherent causes as substantially impaired his mental responsibility for his acts . The psychiatric syndrome referred to as ‘ folie à FAC is a well - recognised state of mind where CARDINAL partner is suggestible to the extent that he or she believes in the psychotic delusions of the other . The degree of disturbance of Miss Haysom borders on the psychotic and , over the course of DATE , she was able to persuade PERSON that he might have to kill her parents for she and him to survive as a couple . ... PERSON had a stupefying and mesmeric effect on PERSON which led to an abnormal psychological state in which he became unable to think rationally or question the absurdities in Miss PERSON ’s view of her life and the influence of her parents . ...", "In conclusion , it is my opinion that , at the time of the offences , PERSON was suffering from an abnormality of mind which , in this country , would constitute a defence of ‘ not guilty to murder but guilty of ORG . \"", "PERSON conclusions were substantially the same as those contained in an earlier psychiatric report ( dated DATE by Dr PERSON , Medical Director of ORG ) , which was not however put before ORG .", "The Chief Magistrate found that the evidence of PERSON was not relevant to any issue that he had to decide and committed the applicant to await the Secretary of ORG ’s order for his return to GPE .", "ORG On DATE Mr PERSON applied to ORG for a writ of habeas corpus in respect of his committal and for leave to apply for judicial review . On DATE both applications were refused by ORG ( Lord Justice Lloyd and Mr Justice PERSON ) .", "In support of his application for leave to apply for judicial review , Mr PERSON had submitted that the assurance received from GPE authorities was so worthless that no reasonable Secretary of ORG could regard it as satisfactory under LAW between GPE and GPE ( see paragraph CARDINAL below ) . In his judgment Lord Justice Lloyd agreed that \" the assurance leaves something to be desired \" :", "\" LAW contemplates an assurance that the death penalty will not be carried out . That must presumably mean an assurance by or on behalf of ORG , which in this case would be the Governor of the GPE of GPE . The certificate sworn by PERSON , far from being an assurance on behalf of the Executive , is nothing more than an undertaking to make representations on behalf of GPE to the judge . I can not believe that this is what was intended when LAW was signed . But I can understand that there may well be difficulties in obtaining more by way of assurance in view of the federal nature of GPE . \"", "Leave to apply for judicial review was refused because the claim was premature . Lord Justice PERSON stated :", "\" The Secretary of ORG has not yet decided whether to accept the assurance as satisfactory and he has certainly not yet decided whether or not to issue a warrant for PERSON ’s surrender . Other factors may well intervene between now and then . This court will never allow itself to be put in the position of reviewing an administrative decision before the decision has been made . \"", "As a supplementary reason , he added :", "\" Secondly , even if a decision to regard the assurance as satisfactory had already been made by the Secretary of ORG , then on the evidence currently before us I am far from being persuaded that such a decision would have been irrational in the ORG sense . \" ( As to \" irrationality \" in the ORG sense , see paragraph CARDINAL below . )", "ORG On DATE ORG rejected the applicant ’s petition for leave to appeal against the decision of ORG .", "ORG On DATE the applicant petitioned the Secretary of ORG , requesting him to exercise his discretion not to make an order for the applicant ’s surrender under LAW of LAW ( see paragraph DATE below ) .", "This request was rejected , and on DATE the Secretary of ORG signed a warrant ordering the applicant ’s surrender to GPE authorities . However , the applicant has not been transferred to GPE by virtue of the interim measures indicated in the present proceedings firstly by ORG and then by ORG ( see paragraphs CARDINAL above and CARDINAL below ) .", "ORG On DATE the applicant was transferred to a prison hospital where he remained until DATE under the special regime applied to suicide - risk prisoners .", "According to psychiatric evidence adduced on behalf of the applicant ( report dated DATE by PERSON ) , the applicant ’s dread of extreme physical violence and homosexual abuse from other inmates in death row in GPE is in particular having a profound psychological effect on him . The psychiatrist ’s report records a mounting desperation in the applicant , together with objective fears that he may seek to take his own life .", "ORG By a declaration dated DATE submitted to ORG , the applicant stated that should the ORG require that he be deported to GPE he would consent to such requirement and would present no factual or legal opposition against the making or execution of an order to that effect .", "ORG In GPE murder is defined as the unlawful killing of a human being with malice aforethought . The penalty is life imprisonment . The death penalty can not be imposed for murder ( Murder ( Abolition of the Death Penalty ) Act DATE , section CARDINAL ) . LAW DATE provides that where a person kills another , he shall not be convicted of murder if he was suffering from such abnormality of mind ( whether arising from a condition of arrested development of mind or any inherent causes or induced by disease or injury ) as substantially impaired his mental responsibility for his acts in doing the killing . A person who but for the section would be liable to be convicted of murder shall be liable to be convicted of manslaughter .", "ORG LANGUAGE courts do not exercise criminal jurisdiction in respect of acts of foreigners abroad except in certain cases immaterial to the present proceedings . Consequently , neither the applicant , as a NORP citizen , nor PERSON , a NORP citizen , was or is amenable to criminal trial in GPE .", "ORG The relevant general law on extradition is contained in LAW .", "ORG The extradition arrangements between GPE and GPE are governed by LAW signed by ORG on DATE , LAW signed on DATE , and an Exchange of Notes dated DATE and DATE amending LAW . These arrangements have been incorporated into the law of GPE by ORG ( GPE ( Extradition ) Order DATE , GPE DATE and GPE ( Extradition ) ( LAW DATE , NORP CARDINAL/CARDINAL ) .", "By virtue of LAW , \" each ORG undertakes to extradite to the other , in the circumstances and subject to the conditions specified in this LAW , any person found in its territory who has been accused or convicted of any offence [ specified in the LAW and including murder ] , committed within the jurisdiction of the other ORG \" .", "ORG Extradition between GPE and GPE is governed by LAW DATE between GPE and GPE for ORG , as reapplied with amendments by an Agreement signed at GPE on DATE and as further amended by an Exchange of Notes dated DATE and DATE . These agreements have been incorporated into the law of GPE by ORG ( GPE DATE , NORP CARDINAL/CARDINAL and GPE ( LAW ) Order DATE , NORP DATE ) .", "ORG After receipt of an extradition request , the Secretary of ORG may , by order , require a magistrate to issue a warrant for the arrest of the fugitive criminal ( LAW , sections CARDINAL and CARDINAL) .", "Extradition proceedings in the GPE consist in an extradition hearing before a magistrate . LAW provides that if \" such evidence is produced as ( subject to the provisions of LAW ) would , according to the law of GPE , justify the committal for trial of the prisoner if the crime of which he is accused had been committed in GPE ... the ... magistrate shall commit him to prison but otherwise he shall order him to be discharged \" . A magistrate must be satisfied that there is sufficient evidence to put the accused on trial ; before committing him a prima facie case must be made out against him . \" The test is whether , if the evidence before the magistrate stood alone at the trial , a reasonable jury properly directed could accept it and find a verdict of guilty \" ( ORG of GPE [ DATE ] Appeal Cases CARDINAL ) .", "ORG LAW of LAW provides that decisions taken in committal proceedings may be challenged by way of application for habeas corpus . In practice , such application is made to a ORG and , with leave , to ORG . Habeas corpus proceedings are primarily concerned with checking that the magistrate had jurisdiction to hear the case ; that there was evidence before him which could justify the committal ; that the offence is an extradition crime which is not of a political character ; and that there is no bar on other grounds to surrender . LAW provides for the release of a prisoner , if not surrendered , at the conclusion of such proceedings or within DATE of committal unless sufficient cause is shown to the contrary .", "ORG Furthermore , under LAW of LAW the Secretary of ORG enjoys a discretion not to sign the surrender warrant ( GPE v. GPE [ DATE ] Appeal Cases CARDINAL ) . This discretion may override a decision of the courts that a fugitive should be surrendered , and it is open to every prisoner who has exhausted his remedies by way of application for habeas corpus to petition the Secretary of ORG for that purpose . In considering whether to order the fugitive ’s surrender , the Secretary of ORG is bound to take account of fresh evidence which was not before the magistrate ( ORG of GPE , loc . cit . ) .", "ORG In addition , it is open to the prisoner to challenge both the decision of the Secretary of ORG rejecting his petition and the decision to sign the warrant in judicial review proceedings . In such proceedings the court may review the exercise of the Secretary of ORG ’s discretion on the basis that it is tainted with illegality , irrationality or procedural impropriety ( ORG Unions and Others v. Minister for ORG [ DATE ] CARDINAL All England Law Reports CARDINAL ) .", "Irrationality is determined on the basis of the administrative - law principles set out in ORG v. ORG [ DATE ] CARDINAL ORG Bench Reports CARDINAL ( the so - called \" ORG principles \" of reasonableness ) . The test in an extradition case would be that no reasonable Secretary of ORG could have made an order for return in the circumstances . As the judgment of Lord Justice Lloyd in ORG in the present case shows ( see paragraph CARDINAL above ) , the reliance placed by the Secretary of ORG on any assurance given by the requesting ORG may be tested to determine whether such reliance is within the confines of \" reasonableness \" .", "In R v. Home Secretary , ex parte PERSON [ DATE ] CARDINAL All England Law Reports CARDINAL at CARDINAL , a ORG case concerning a refusal to grant asylum , FAC , while acknowledging the limitations of the ORG principles , explained that the courts will apply them extremely strictly against the Secretary of ORG in a case in which the life of the applicant is at risk :", "\" Within those limitations the court must , I think , be entitled to subject an administrative decision to the most rigorous examination , to ensure that it is in no way flawed , according to the gravity of the issue which the decision determines . The most fundamental of all human rights is the individual ’s right to life and , when an administrative decision under challenge is said to be one which may put the applicant ’s life at risk , the basis of the decision must surely call for the most anxious scrutiny . \"", "Lord PERSON added ( at page CARDINAL ) :", "\" In my opinion where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision - making process . \"", "However , the courts will not review any decision of the Secretary of ORG by reason of the fact only that he failed to consider whether or not there was a breach of ORG ( NORP v. Secretary of ORG , ex parte ORG [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) .", "In addition , the courts have no jurisdiction to issue interim injunctions against the ORG in judicial review proceedings ( ORG , ibid . , and R v. Secretary of ORG , ex parte PERSON and Others , The ORG , CARDINAL DATE ) .", "ORG There is no provision in the Extradition Acts relating to the death penalty , but LAW provides :", "\" If the offence for which extradition is requested is punishable by death under the relevant law of the requesting ORG , but the relevant law of the requested ORG does not provide for the death penalty in a similar case , extradition may be refused unless the requesting ORG gives assurances satisfactory to the requested ORG that the death penalty will not be carried out . \"", "ORG In the case of a fugitive requested by GPE who faces a charge carrying the death penalty , it is the Secretary of ORG ’s practice , pursuant to LAW , to accept an assurance from the prosecuting authorities of the relevant ORG that a representation will be made to the judge at the time of sentencing that it is the wish of GPE that the death penalty should be neither imposed no carried out . This practice has been described by PERSON , then Minister of State at ORG , in the following terms :", "\" The written undertakings about the death penalty that the Secretary of ORG obtains from the Federal authorities amount to an undertaking that the views of GPE will be represented to the judge . At the time of sentencing he will be informed that GPE does not wish the death penalty to be imposed or carried out . That means that GPE authorities render up a fugitive or are prepared to send a citizen to face an NORP court on the clear understanding that the death penalty will not be carried out - it has never been carried out in such cases . It would be a fundamental blow to the extradition arrangements between our CARDINAL countries if the death penalty were carried out on an individual who had been returned under those circumstances . \" ( ORG , CARDINAL DATE , col . CARDINAL )", "There has , however , never been a case in which the effectiveness of such an undertaking has been tested .", "ORG Concurrent requests for extradition in respect of the same crime from CARDINAL different States are not a common occurrence . If both requests are received at the same time , the Secretary of ORG decides which request is to be proceeded with , having regard to all the facts of the case , including the nationality of the fugitive and the place of commission of the offence .", "In this respect LAW between GPE and GPE provides as follows :", "\" If the extradition of a person is requested concurrently by CARDINAL of the Contracting Parties and by GPE , either for the same offence or for different offences , the requested ORG shall make its decision , in so far as its law allows , having regard to all the circumstances , including the provisions in this regard in any Agreements in force between the requested ORG and the requesting GPE , the relative seriousness and place of commission of the offences , the respective dates of the requests , the nationality of the person sought and the possibility of subsequent extradition to another ORG . \"", "ORG The relevant definition and classification of murder and sentencing for murder are governed by LAW , as amended , and the decided cases in the ORG and Federal courts .", "ORG Section DATE of LAW provides that eight types of homicide constitute capital murder , punishable as a Class CARDINAL felony , including \" the wilful , deliberate and premeditated killing of CARDINAL person as a part of the same act or transaction \" ( sub - section ( g ) ) . The punishment for a Class CARDINAL felony is \" death or imprisonment for life \" ( MONEY , section DATE ) ) . Except in the case of murder for hire , only the \" triggerman \" , that is the actual perpetrator of the killing , may be charged with capital murder ( PERSON v. Commonwealth , CARDINAL ORG ( GPE ) CARDINAL , CARDINAL NORP Reporter , Second Series ( S.E.CARDINALd ) CARDINAL ( DATE ) ) .", "Murder other than capital murder is classified as murder in the first degree or murder in the second degree and is punishable by varying terms of imprisonment ( LAW , sections CARDINAL - CARDINAL(b ) , ( c ) and CARDINAL - CARDINAL ) .", "ORG In most felony trials , including trials for capital murder , the defendant is guaranteed trial by jury . The defendant may waive this right but does not often do so .", "ORG The sentencing procedure in a capital murder case in GPE is a separate proceeding from the determination of guilt . Following a determination of guilt of capital murder , the same jury , or judge sitting without a jury , will forthwith proceed to hear evidence regarding punishment . All relevant evidence concerning the offence and the defendant is admissible . Evidence in mitigation is subject to almost no limitation , while evidence of aggravation is restricted by statute ( LAW , section CARDINAL ) .", "ORG Unless the prosecution proves beyond a reasonable doubt the existence of CARDINAL of CARDINAL statutory aggravating circumstances - future dangerousness or vileness - the sentencer may not return a death sentence .", "\" Future dangerousness \" exists where there is a probability that the defendant would commit \" criminal acts of violence \" in the future such as would constitute a \" continuing serious threat to society \" ( LAW , section CARDINAL ) .", "\" Vileness \" exists when the crime was \" outrageously or wantonly vile , horrible or inhuman in that it involved torture , depravity of mind or an aggravated battery to the victim \" ( Virginia Code , ibid . ) . The words \" depravity of mind \" mean \" a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation \" . The words \" aggravated battery \" mean a battery which , \" qualitatively and quantitatively , is more culpable than the minimum necessary to accomplish an act of murder \" ( ORG , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) , certiorari denied , CARDINAL ORG ( GPE ) CARDINAL ( DATE ) ) . Proof of multiple wounds sustained by the victim , particularly a neck wound , which even considered alone , constituted an aggravated battery in the light of the savage , methodical manner in which it was inflicted , leaving the victim to suffer an interval of agony awaiting death , has been held to satisfy the test of \" vileness \" under this section ( PERSON v. Commonwealth , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL , certiorari denied , CARDINAL ORG Reporter ( GPE . ) CARDINAL , CARDINAL ORG , Lawyers’ Edition , Second Series ( ORG ) CARDINAL ( DATE ) ) .", "ORG The imposition of the death penalty on a young person who has reached the age of majority - which is DATE ( FAC , section CARDINAL.CARDINAL.CARDINAL ) - is not precluded under GPE law . Age is a fact to be weighed by the jury ( GPE , CARDINAL Va. CARDINAL , CARDINAL S.E.CARDINALd CARDINAL , certiorari denied , CARDINAL GPE CARDINAL , ORG . CARDINAL , CARDINAL ORG CARDINAL ( DATE ) ) .", "ORG Facts in mitigation are specified by statute as including but not being limited to the following :", "\" ( i ) the defendant has no significant history of prior criminal activity , or ( ii ) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance , or ( iii ) the victim was a participant in the defendant ’s conduct or consented to the act , or ( iv ) at the time of the commission of the capital felony , the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired , or ( v ) the age of the defendant at the time of the commission of the capital offence \" ( LAW , section CARDINAL - CARDINAL.CARDINALB ) .", "ORG In a case of trial by jury , the jury in a capital murder case has the duty to consider all evidence relevant to sentencing , both favourable and unfavourable , before fixing punishment . In particular , a jury may sentence a defendant to death only after having considered the evidence in mitigation of the offence ( PERSON v. Commonwealth , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) , certiorari denied , CARDINAL GPE CARDINAL , CARDINAL S.Ct . DATE , CARDINAL ORG CARDINAL ( DATE ) ) . Furthermore , unless the jury is unanimous the sentence can not be death but must be life imprisonment ( LAW , section CARDINAL ) . Even if CARDINAL or more of the statutory aggravating circumstances are shown , the sentencer still remains at liberty to fix a life sentence instead of death in the light of the mitigating circumstances and even for no reason other than mercy ( ORG , loc . cit . ) .", "ORG Following a sentence of death , the trial judge must order the preparation of an investigative report detailing the defendant ’s history and \" any and all other relevant facts , to the end that the court may be fully advised as to whether the penalty of death is appropriate and just \" ; after consideration of the report , and upon good cause shown , the judge may set aside the sentence of death and impose a life sentence ( MONEY , section CARDINAL - CARDINAL.CARDINAL ) .", "ORG Following a moratorium consequent upon a decision of ORG ( ORG v. GPE , CARDINAL ORG . CARDINAL ( DATE ) ) , imposition of the death penalty was resumed in GPE in DATE , since which date CARDINAL persons have been executed . The means of execution used is electrocution .", "The GPE death penalty statutory scheme , including the provision on mandatory review of sentence ( see paragraph CARDINAL below ) , has been judicially determined to be constitutional . It was considered to prevent the arbitrary or capricious imposition of the death penalty and narrowly to channel the sentencer ’s discretion ( ORG , loc . cit . ; PERSON v. PERSON , CARDINAL ORG , Second Series ( F.CARDINALd ) CARDINAL ( ORG , DATE ) ; PERSON v. PERSON , CARDINAL F.CARDINALd CARDINAL ( CARDINALth Circuit , DATE ) ) . The death penalty under the GPE capital murder statute has also been held not to constitute cruel and unusual punishment or to deny a defendant due process or equal protection ( ORG , CARDINAL Va. CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) , certiorari denied , CARDINAL GPE CARDINAL , CARDINAL ORG . DATE , CARDINAL L.Ed.CARDINALd CARDINAL ( DATE ) ) . ORG of GPE rejected the submission that death by electrocution would cause \" the needless imposition of pain before death and emotional suffering while awaiting execution of sentence \" ( ibid . ) .", "ORG The law of GPE generally does not recognise a defence of diminished capacity ( ORG , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) ) .", "ORG A plea of insanity at the time of the offence is recognised as a defence in GPE and , if successful , is a bar to conviction . Such a plea will apply where the defendant knows that the act is wrong but is driven by an irresistible impulse , induced by some mental disease affecting the volitive powers , to commit it ( ORG , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) and ORG , ORG ( ORG . ) CARDINAL ( DATE ) ) or where he does not understand the nature , character and consequences of his act or is unable to distinguish right from wrong ( Price v. ORG , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) ) . Where no insanity defence is interposed , the defendant ’s mental condition is only relevant at the guilt stage in so far as it might be probative of a fact in issue , for example premeditation at the time of the killing ( ORG v. GPE , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) , certiorari denied , CARDINAL GPE DATE , ORG CARDINAL , CARDINAL ORG CARDINAL ( DATE ) ) .", "ORG In a capital murder trial , the defendant ’s mental condition at the time of the offence , including any level of mental illness , may be pleaded as a mitigating factor at the sentencing stage . Evidence on this may include , but is not limited to , showing that the defendant was under the influence of extreme mental or emotional disturbance or that at the time of the offence his capacity to appreciate the criminality of his conduct was significantly impaired ( FAC , section CARDINAL - CARDINAL.CARDINALB - see paragraph CARDINAL above ) .", "Additionally , indigent capital murder defendants are entitled by statute to the appointment of a qualified mental health expert to assist in the preparation and presentation of information concerning their history , character and mental condition with a view to establishing factors in mitigation ( LAW , section CARDINAL.CARDINAL - CARDINAL.CARDINAL:CARDINAL ) .", "Upon presentation of evidence of the defendant ’s mental state , the sentencer may elect to impose life imprisonment rather than the death penalty .", "ORG of GPE reviews automatically every case in which a capital sentence has been passed , regardless of the plea entered by the defendant at his trial . In addition to consideration of \" any errors in the trial \" alleged by the defendant on appeal , ORG reviews the death sentence to determine whether it was imposed \" under the influence of passion , prejudice or any other arbitrary factor \" and whether it is excessive or disproportionate \" to the penalty imposed in similar cases \" ( Virginia Code , section CARDINAL - CARDINAL.CARDINAL ) .", "This automatic direct appeal is governed by LAW and encompasses various time - limits for the filing of briefs . In addition , precedence is given to the review of sentences of death before any other case ( Rule CARDINAL ; see also PERSON , section CARDINAL - CARDINAL.CARDINAL ) . Normally the time taken by this appeal does not exceed DATE .", "After this appeal process is completed , the sentence of death will be executed unless a stay of execution is entered . As a practical matter , a stay will be entered when the prisoner initiates further proceedings .", "There has apparently been CARDINAL case since DATE where ORG has itself reduced a death sentence to life imprisonment .", "ORG The prisoner may apply to ORG for certiorari review of the decision of ORG of GPE . If unsuccessful , he may begin collateral attacks upon the conviction and sentence in habeas corpus proceedings in both ORG and Federal courts .", "The prisoner may file a habeas corpus petition either in ORG of GPE or in the trial court , with appeal to ORG of GPE . Thereafter he may once more apply to ORG for certiorari review of the ORG ’s habeas corpus decision .", "He may then file a petition for a writ of habeas corpus in ORG . The decision of ORG may be appealed to ORG , followed , if no relief is obtained , by a petition for certiorari review in ORG .", "At each stage of his collateral attacks , the prisoner may seek a stay of execution pending final determination of his applications .", "ORG The GPE and Federal statutes and rules of court set time - limits for the presentation of appeals following conviction or appeals against the decisions in habeas corpus proceedings . There are , however , no time - limits for filing the initial ORG and Federal habeas corpus petitions .", "ORG The grounds which may be presented and argued on appeal and in habeas corpus proceedings are restricted by the \" contemporaneous objections rule \" to those which have been raised in the course of the trial ( see Rule CARDINAL of the Rules of ORG of GPE ) . The rule is based on the principle that the trial itself is the \" main event \" , so that the real issues between the parties should be canvassed and determined at the trial and not on appeal or in any subsequent review proceedings . It was adopted to prevent the setting of traps for trial courts ( GPE v. GPE , CARDINAL GPE CARDINAL , CARDINAL NORP Reporter ( GPE ) CARDINAL ( DATE ) ) , and so that the trial judge will be given the opportunity to rule upon the issues intelligently and unnecessary appeals , reversals and mistrials will be avoided ( PERSON v. Commonwealth , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) , certiorari denied , CARDINAL GPE CARDINAL ( DATE ) ) . The rule applies equally in capital cases and is recognised by ORG ( see PERSON v. PERSON , CARDINAL ORG ( F. Supp . ) CARDINAL ( LOC GPE ) , aff’d , CARDINAL F.CARDINALd CARDINAL ( CARDINALth Circuit DATE ) ) .", "By way of exception to the rule , errors to which no objections were made at the trial may be objected to on appeal where this is necessary to attain the ends of justice or where good cause is shown . This exception has been applied by ORG of GPE to overturn a capital murder conviction ( GPE , CARDINAL GPE CARDINAL , CARDINAL S.E.CARDINALd CARDINAL ( DATE ) ) . In death penalty cases , the proportionality of the sentence and the issue of whether the sentence was imposed under the influence of passion , prejudice or other arbitrary factor ( see paragraph CARDINAL above ) is reviewed without regard to whether objection was made at trial ( see PERSON v. PERSON , loc . cit . ) .", "ORG The average time between trial and execution in GPE , calculated on the basis of the CARDINAL executions which have taken place since DATE , is DATE . The delays are primarily due to a strategy by convicted prisoners to prolong the appeal proceedings as much as possible . ORG has not as yet considered or ruled on the \" death row phenomenon \" and in particular whether it falls foul of the prohibition of \" cruel and unusual punishment \" under LAW .", "ORG All prisoners who have been sentenced to death have individual lawyers to represent them , whether privately recruited or court - appointed . On the other hand , there is no statutory provision expressly mandating legal assistance to be made available to the indigent prisoner to file habeas corpus petitions . However , it has recently been affirmed by a ORG that the GPE of GPE is required to provide indigent prisoners who have been sentenced to death with the assistance of lawyers to pursue challenges to their death sentences in ORG habeas corpus actions ( ORG v. PERSON , CARDINAL F.CARDINALd CARDINAL ( CARDINALth Circuit DATE ) ( en banc ) - case currently pending before ORG ) . In Federal habeas corpus and certiorari proceedings case - law does not impose the same obligation ( ibid . , p. CARDINAL , column CARDINAL ) , for the reason that the Federal courts would have available the appellate briefs , a transcript and ORG court opinion ( in certiorari proceedings ) and the briefs of counsel , a transcript and opinion ( in habeas corpus proceedings ) .", "GPE inmates also have access to legal information and assistance in the form of law libraries and institutional attorneys . The institutional attorneys are available to assist inmates in \" any legal matter relating to their incarceration \" ( LAW , section CARDINAL - CARDINAL ) , including the drafting of habeas corpus petitions and motions for appointment of counsel for the inmates to file .", "A prisoner is not obliged to proceed with counsel , and he may litigate in both ORG and Federal courts pro se . However , no GPE prisoner under sentence of death in contemporary times has ever been unrepresented during his trial , appeal or habeas corpus proceedings . Nor has any such prisoner faced execution without counsel .", "ORG A ORG ’s Attorney for each county in GPE is elected DATE ( Article VII(CARDINAL ) of LAW ) . His primary duty is the prosecution of all criminal cases within his locality ( see FAC , section CARDINAL - CARDINAL.CARDINAL ) . He has discretion as to what degree of murder to present for indictment , but that discretion is limited by considerations of prosecutorial ethics and his legal duty under the general law and to the public to present the indictment for the crime which is best supported by the evidence . He is independent in the discharge of his duty , not being subject to direction in any relevant way , whether as to charging offences , seeking sentences or giving related assurances , by the Attorney General of GPE ( see LAW , section QUANTITY ) , the Governor of GPE or anyone else . It is open to the ORG ’s Attorney to engage in plea negotiations , but the court is not bound to accept any resultant agreement ( Rule ORG of GPE ) .", "Judges of the district and higher courts of ORG are not elected but are appointed to the bench . Their conduct is governed by published ORG , which have been adopted by ORG of Virginia as Rules of ORG . DATE of high standards of conduct so as to preserve the integrity and independence of the judiciary is included as part of the first ORG .", "ORG The Governor of the GPE of GPE has an unrestricted power \" to commute capital punishment \" ( Article V , section CARDINAL , of the LAW of Virginia ) . As a matter of policy , the Governor does not promise , before a conviction and sentence , that he will later exercise his commutation power . Since DATE there has been no case in which the Governor has commuted a death sentence .", "ORG There are currently CARDINAL people under sentence of death in GPE . The majority are detained in FAC , which is a modern maximum - security institution with a total capacity of CARDINAL inmates . ORG ( IOP CARDINAL.CARDINAL ) establish uniform operating procedures for the administration , security , control and delivery of necessary services to death row inmates in GPE . In addition conditions of confinement are governed by a comprehensive consent decree handed down by GPE in GPE in the case of PERSON . v. PERSON et al . ( DATE ) . Both ORG and ORG monitor compliance with the terms of the consent decree . GPE also retains jurisdiction to enforce compliance with the decree .", "ORG The channels by which grievances may be ventilated and , if well - founded , remedied include ( CARDINAL ) the use of a ORG approved ORG of ORG , involving the Warden , ORG and ORG , and ORG , ( CARDINAL ) formal or informal contact between ORG counsel and the prison staff , ( CARDINAL ) complaint to the courts for breach of the consent decree , and ( CARDINAL ) the institution of legal proceedings under ORG tort laws .", "ORG The size of a death row inmate ’s cell is QUANTITY by QUANTITY . Prisoners have an opportunity for CARDINAL ORG recreation per week in DATE and approximately CARDINAL hours’ per week , weather permitting , in DATE . The death row area has QUANTITY , both of which are equipped with basketball courts and CARDINAL of which is equipped with weights and weight benches . Inmates are also permitted to leave their cells on other occasions , such as to receive visits , to visit the law library or to attend the prison infirmary . In addition , death row inmates are given TIME out - of - cell time in the morning in a common area . Each death row inmate is eligible for work assignments , such as cleaning duties . When prisoners move around the prison they are handcuffed , with special shackles around the waist .", "When not in their cells , death row inmates are housed in a common area called \" the pod \" . The guards are not within this area and remain in a box outside . In the event of disturbance or inter - inmate assault , the guards are not allowed to intervene until instructed to do so by the ranking officer present .", "ORG The applicant adduced much evidence of extreme stress , psychological deterioration and risk of homosexual abuse and physical attack undergone by prisoners on death row , including FAC . This evidence was strongly contested by ORG on the basis of affidavits sworn by administrators from ORG .", "Death row inmates receive the same medical service as inmates in the general population . An infirmary equipped with adequate supplies , equipment and staff provides for CARDINAL-hour in - patient care , and emergency facilities are provided in each building . GPE also provides psychological and psychiatric services to death row inmates . GPE ( LOC of GPE ) has recently upheld the adequacy of mental health treatment available to death row inmates in GPE ( Stamper et al . v. PERSON . , decision of DATE ) .", "Inmates are allowed non - contact visits in a visiting room on DATE , DATE and holidays between PERSON and CARDINAL.CARDINALpm . Attorneys have access to their clients during TIME on request as well as during the scheduled visiting TIME . Death row inmates who have a record of good behaviour are eligible for contact visits with members of their immediate family DATE . Outgoing correspondence from inmates is picked up DATE and all incoming correspondence is delivered each TIME .", "ORG As a security precaution , pursuant to rules applicable to all institutions in GPE , routine searches are conducted of the entire institution on a DATE basis . These searches may last for DATE . During such times , called lockdowns , inmates are confined to their cells ; they are showered , receive medical , dental and psychological services outside their cells as deemed necessary by medical staff , and upon request may visit the law library , and are allowed legal visits and legal telephone calls . Other services such as meals are provided to the inmates in their cells . During the lockdown , privileges and out - of - cell time are gradually increased to return to normal operations .", "DATE may also be ordered from time to time in relation to death row if information is received indicating that certain of its inmates may be planning a disturbance , hostage situation or escape .", "ORG A death row prisoner is moved to the death house DATE before he is due to be executed . The death house is next to the death chamber where the electric chair is situated . Whilst a prisoner is in the death house he is watched TIME a day . He is isolated and has no light in his cell . The lights outside are permanently lit . A prisoner who utilises the appeals process can be placed in the death house several times .", "ORG Relations between GPE and GPE on matters concerning extradition are conducted by and with the Federal and not the ORG authorities . However , in respect of offences against ORG laws the Federal authorities have no legally binding power to provide , in an appropriate extradition case , an assurance that the death penalty will not be imposed or carried out . In such cases the power rests with the ORG . If a ORG does decide to give a promise in relation to the death penalty , ORG has the power to give an assurance to the extraditing Government that the ORG ’s promise will be honoured .", "According to evidence from the GPE authorities , GPE ’s capital sentencing procedure and notably the provision on post - sentencing reports ( see paragraph CARDINAL above ) would allow the sentencing judge to consider the representation to be made on behalf of ORG pursuant to the assurance given by the Attorney for GPE ( see paragraph CARDINAL above ) . In addition , it would be open to the Governor to take into account the wishes of ORG in any application for clemency ( see paragraph CARDINAL above ) .", "ORG There is no way of compelling NORP witnesses to give evidence at a trial in GPE . However , such witnesses would normally , unless imprisoned , be free to appear voluntarily before a NORP court and the NORP authorities would pay their expenses . Furthermore , a ORG court may , pursuant to a letter rogatory or a request from a foreign tribunal , order a person to give testimony or a statement or to produce a document or other thing for use in a proceeding in a foreign tribunal ( MONEY , section DATE ) . In addition , public documents , for example the transcript of a criminal trial , are available to foreign prosecuting authorities .", "ORG NORP criminal law applies to acts committed abroad by a NORP national if the act is liable to punishment at the place where the offence is committed ( Criminal Code , section CARDINAL(CARDINAL ) ) .", "Murder is defined as follows in section CARDINAL(CARDINAL ) of LAW :", "\" He is deemed a murderer who because of murderous lust , to satisfy his sexual instinct , for reasons of covetousness or for otherwise base motives , insidiously or cruelly or by means constituting a public danger or in order to render another crime possible or to conceal another crime kills a person . \"", "Murder is punishable with life imprisonment ( Criminal Code , section CARDINAL(CARDINAL ) ) , the death penalty having been abolished under LAW ( LAW , DATE ) .", "ORG Under the terms of LAW ( DATE ) as amended , if a young adult - defined as a person who is CARDINAL but not yet DATE of age at the time of the criminal act ( section CARDINAL(CARDINAL ) ) - commits an offence , the judge will apply the provisions applicable to a juvenile - defined as a person who is CARDINAL but not yet DATE ( ibid . ) - if , inter alia , \" the overall assessment of the offender ’s personality , having regard also to the circumstances of his environment , reveals that , according to his moral and mental development , he was still equal to a juvenile at the time of committing the offence \" ( section CARDINAL ) ) . The sentence for young adults who come within this section is youth imprisonment of DATE or , under certain conditions , of indeterminate duration ( sections CARDINAL , DATE and CARDINAL(CARDINAL ) ) .", "Where , on the other hand , the young adult offender ’s personal development corresponds to his age , the general criminal law applies but the judge may pass a sentence of DATE imprisonment instead of a life sentence ( section CARDINAL(CARDINAL ) ) .", "ORG Where an offender , at the time of commission of the offence , was incapable of appreciating the wrongfulness of the offence or of acting in accordance with such appreciation by reason of a morbid mental or emotional disturbance , by reason of a profound disturbance of consciousness or by reason of mental deficiency or some other serious mental or emotional abnormality , there can be no culpability on his part and he may not be punished ( Criminal Code , LAW . In such a case , however , it is possible for an order to be made placing the offender in a psychiatric hospital indefinitely ( Criminal Code , section CARDINAL ) .", "In a case of diminished responsibility , namely where there is substantial impairment of the offender ’s ability to appreciate the wrongfulness of the offence or to act in accordance with such appreciation at the time of commission of the offence for CARDINAL of the reasons set out in section CARDINAL LAW , section DATE ) , punishment may be reduced and , in particular , in homicide cases imprisonment of not less than DATE shall be substituted for life imprisonment ( Criminal Code , section CARDINAL(CARDINAL)(CARDINAL ) ) . Alternatively , the court may order placement in a psychiatric hospital .", "ORG Where a death sentence is risked , ORG will grant extradition only if there is an unequivocal assurance by the requesting ORG that the death penalty will not be imposed or that it will not be carried out . ORG of DATE , in force since CARDINAL DATE , contains a provision ( LAW ) corresponding , in its essentials , to LAW ( see paragraph CARDINAL above ) . ORG GPE stated in evidence that they would not have deemed an assurance of the kind given by ORG in the present case to be adequate and would have refused extradition . In accordance with recent judicial decisions , the question whether an adequate assurance has been given is subject to examination in proceedings before the higher regional court ." ]

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[ "6-3-c" ]

[ "The applicant was born in DATE and lives in GPE .", "The applicant was an editor - in - chief of the NORP DATE newspaper ORG . The periodical has ceased publication .", "On DATE the applicant published an article about Mr V. ORG , who at that time was the acting Prime Minister of GPE . The article was entitled “ LOC ” ( the first article ) and described the dismissal of PERSON , the President of ORG ( NORP морське пароплавство , hereinafter the “ BSSC ” ) , a ORG - owned enterprise . The applicant alleged that PERSON ORG dismissed PERSON because of his involvement in financing the FAC . The relevant extracts from the article were as follows :", "“ Who could imagine that a former GPE bureaucrat , police pen - pusher and near - political schemer would occupy DATE CARDINAL of the highest posts in the Government ? The press is what the sinister Premier hates the most , as he fears public opinion . He did not forget that in DATE our newspaper accused him of plotting against Prime Minister PERSON . And as soon as he got the chance , he triggered the punitive mechanisms to suppress the independent media . For instance , he accused ORG , the President of ORG , of financing GPE . ORG ’s “ error ” was that he had concluded a contract with us to issue promotional materials for the ORG . The newspaper spent MONEY from its own pocket , but has not yet received full payment for the published materials .", "Without waiting for the results of a ministerial inquiry , on DATE before last , the acting Prime Minister , in the absence of both the President , who was in GPE , and the Prime Minister , who was hospitalised , summoned ORG and forced a decision to dismiss the president of the ORG . ”", "On DATE the applicant published an article entitled “ Save the barbed wire , citizen Durdinets ” ( Экономьте колючую проволку , гражданин DATE the second article ) , where he stated that Mr PERSON had personally instructed ORG to institute criminal proceedings against him . The relevant extracts from the article read as follows :", "“ ... As we have learned , immediately after the release of the article [ LOC ] , PERSON summoned ORG , PERSON , to his office and , showing him the newspaper , demanded that criminal proceedings for defamation be instituted against the author ... Any other person , who considers himself to be defamed or insulted , would go to a court of law to make his case publicly . But PERSON has no regard for civil rights as he attempts to use his powers as a high ranking governmental official . So it is worth mentioning here the abuse of power , as neither I nor any of our readers can summon PERSON to his office , the less so to demand the institution of criminal proceedings against one ’s opponent . The acting Prime Minister considers that he can give orders to ORG ( although the law provides for the independence of the latter ) , and he does so . ”", "On DATE the applicant wrote an article under the headline “ The Rogue and the General ” ( “ NORP и генерал ” – the third article ) , which concerned the alleged relationship between General PERSON , at that time the Chief of ORG , and a certain PERSON , who was reported to have been involved in criminal activity . The applicant ’s newspaper also published several photographs in which the police chief and PERSON were pictured together . It appears that these pictures were made during a private occasion and were subsequently published by the paper and TV media ( see paragraph CARDINAL below ) .", "The article stated , inter alia , that :", "“ An ... inquiry revealed that ... PERSON was never employed by ORG . The person who had blackmailed [ local businessmen ] was a former police officer , PERSON , and the photographs [ which he had showed to prove his authority ] contained images of high officials of ORG .", "But where did the ex - policeman ... get the photographs of PERSON and his deputies drinking with him and hugging him ? Now he is showing these photographs to [ businessmen ] and thereby collects money for ... life .", "The examination of this relationship clarifies the statements of S. ... that ‘ they will stand for me ... ’ .", "This story seems to prove the corruption in the GPE ORG we were writing about . ”", "On DATE the applicant published an article entitled “ The Rogue and the General turn out to be relatives ” ( “ NORP и генерал оказались родственниками ” – the fourth article ) , in which he recited the interview of certain PERSON to a local TV station to the effect that the Chief of Police and Mr S. were distant relatives :", "“ The scandal surrounding the head of ORG , General PERSON , continues . Condemned by the press for having patronised criminals , the General stands on firm ground so far .", "When we published ‘ The Rogue and the General’ , we did not know that PERSON and PERSON were brothers - in - law . ... The unlawful activity of PERSON is blessed by the figure of General G .... ”", "On DATE the Head of ORG tabled a written question to the ORG raising concern as to the publications defaming the acting Prime Minister PERSON . In DATE ORG ( hereinafter “ the ORG ” ) , referring to the extracts from his articles quoted above , charged the applicant with intentional defamation in print ( LAW of DATE ) , an unfounded accusation of committing a serious crime ( LAW ) and abuse of power ( LAW ) .", "NORP On DATE the Pechersky District Court of GPE acquitted the applicant for lack of corpus delicti . However , in DATE ORG , on the prosecutor ’s appeal , quashed this decision and remitted the case for fresh consideration .", "On DATE the ORG of GPE ( hereinafter “ the ORG ” ) found the applicant guilty as charged . In the introductory part of the judgment the court noted the personal data of the applicant and , inter alia , stated that he was “ previously unconvicted ” ( раніше не судимий ) .", "With respect to the first and second articles , the court indicated that the applicant , having abused his office , published intentionally false and malicious statements to the effect that Mr ORG had persecuted the GPE , had unlawfully dismissed PERSON for his financing the newspaper and had summoned ORG to his office with a view of giving him an order to institute criminal proceedings against the applicant .", "As regards the third and fourth articles , ORG stated that the applicant , again abusing his office , had intentionally defamed the law enforcement agencies of GPE by publishing libellous and false information regarding General PERSON , namely that Mr S. was involved in criminal activity and that PERSON had had illegal links with this person . The court found that the statements that PERSON , aided and abetted by PERSON , had extorted money from local businessmen and that they were family related were false and offensive . This conclusion was made on the basis of , inter alia , testimonies of PERSON and a witness PERSON who stated that the photographs , published by the FAC , were taken at a private party , but somehow made their way to the paper and TV media . The police officers , who had investigated the complaints of the businessmen about the alleged extortions , also gave oral evidence , stating that the proceedings in the case were terminated on the early stage of the pre - trial investigation due to the lack of any corpus delicti .", "ORG concluded that the applicant , as an editor - in - chief , was directly liable for any abusive material published in the newspaper . Using his office , the applicant had intentionally published false statements aimed at defaming the police in revenge for a certain unspecified previous conviction .", "The applicant was convicted of abuse of power , intentional defamation in print and an unfounded accusation of committing a grave offence and sentenced to CARDINAL years’ imprisonment on probation and a DATE prohibition on occupying posts involving media management .", "On DATE ORG upheld the applicant ’s conviction in substance , indicating that the fact that the imputed offences had been committed was proved by a wide range of evidence , collected by the prosecution . In particular , the court came to the conclusion that the applicant had made intentionally false and offensive statements concerning the unlawful dismissal of PERSON and Mr PERSON summons of ORG to his office , the criminal activity of PERSON and his liaisons with General PERSON , thus committing offences under LAW and CARDINAL of LAW , DATE . However , the appellate instance quashed the applicant ’s sentence for intentional defamation in print and an unfounded accusation of committing a grave offence as these offences had been decriminalised by LAW adopted in DATE . As regards the third offence imputed to the applicant – abuse of office – the applicant was exempted from punishment on account of expiry of the statutory limitation period .", "On DATE ORG upheld the decision of ORG .", "Relevant extracts from the LAW read as follows :", "“ ... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family , and of the right to demand that any type of information be rectified , and also the right to compensation for material and moral damage inflicted by the collection , storage , use and dissemination of such incorrect information . ”", "“ Everyone is guaranteed the right to freedom of thought and speech , and to the free expression of his or her views and beliefs .", "Everyone has the right to freely collect , store , use and disseminate information by oral , written or other means of his or her choice .", "The exercise of these rights may be restricted by law in the interests of national security , territorial indivisibility or public order , with the purpose of preventing disturbances or crime , protecting the health of the population , the reputation or rights of other persons , preventing the publication of information received confidentially , or maintaining the authority and impartiality of justice . ”", "The text of LAW was as follows :", "Defamation [ ORG ] , namely the intentional dissemination of falsehoods aimed at damaging the reputation of another shall be punishable by ...", "Defamation in print ... shall be punishable by DATE imprisonment or a fine from CARDINAL minimal DATE salaries .", "Defamation linked with an unfounded accusation of committing a grave offence shall be punishable by PERCENT five years’ imprisonment .", "Article CARDINAL of the Code provided as follows :", "Abuse of power or office , namely intentional , lucrative or with other personal interest or the interest of third persons , use by official of his / her power or office against the interest of service , if it caused serious damage to the ORG or public interests or to lawful interests of natural or legal persons shall be publishable by CARDINAL years’ imprisonment or by CARDINAL years’ correctional labour with CARDINAL years’ prohibition of employment in certain occupations . ”", "LAW provides that :", "Abuse of power or office , namely intentional , lucrative or with other personal interest or the interest of third persons , use by official of his / her power or office against the interest of service , if it caused serious damage to the ORG or public interests or to lawful interests of natural or legal persons shall be publishable by CARDINAL years’ correctional labour or by CARDINAL months’ arrest or by DATE limitation of freedom with CARDINAL years’ prohibition of employment in certain occupations . ”", "The text of LAW ( hereafter “ the ORG ” ) , as worded until DATE , was as follows :", "“ The cases concerning crimes stipulated in Articles CARDINAL ... of LAW of GPE , if the damage is caused to the rights and interests of citizens are instituted only upon the complaint of the victim , who conducts the prosecution in court . In such cases there is no pre - trial investigation .", "... If the case concerning any crime referred to in paragraph CARDINAL of this LAW has special public interest ... the prosecutor may institute the case in absence of the victim ’s complaint . The case instituted by the prosecutor should be sent to the pre - trial investigation and , thereafter , is tried under the general rules . ”", "DATE of the PERSON provides that ORG is staffed with “ senior investigators for particularly serious cases ” and “ investigators for particularly serious cases ” .", "Further relevant material regarding the state of freedom of press in GPE at the material time may be found in the judgment of DATE in the case of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE and DATE ) ." ]

[ "10" ]

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[ "The applicant was born in DATE and lives in GPE ) .", "On DATE the applicant was injured in a car accident caused by ORG She claimed damages in criminal proceedings that were instituted against ORG", "In a final decision of DATE , ORG ( “ the Court of Appeal ” ) made awards in respect of pecuniary and non - pecuniary damage to both the applicant and her husband . It also ordered ORG to pay a DATE amount to the applicant until her state of dependency ceased . On DATE and DATE the quantum of damages and the level of the DATE instalments to the applicant were brought up to date .", "On DATE an application by ORG at ORG to have the judgments in the criminal proceedings quashed ( recurs PERSON anulare ) was granted by ORG , which therefore set aside the award for damage in respect of the applicant ’s husband .", "On DATE the applicant and her husband brought an action seeking the division of property that was jointly owned by ORG and his wife . They alleged that the community of property between spouses had hindered the enforcement of the judgment in their favour , which concerned only ORG", "On DATE ORG ( “ ORG ” ) upheld their claims in part , severed the joint tenancy between ORG and his wife , and allocated their apartment to ORG", "On DATE ORG ( “ the ORG ” ) struck out an appeal by ORG and his wife because they had failed to pay the prescribed fee .", "On DATE ORG by a final decision upheld an appeal by ORG and his wife and quashed the judgment of ORG , sending the case back for a fresh examination of their appeal . It found that ORG and his wife had not been informed of the obligation to pay the fee or of the amount due .", "After a retrial , on DATE ORG rejected the appeal of ORG and her wife as groundless .", "On DATE ORG by a final decision allowed a subsequent appeal by ORG wife , on the ground that the courts had not examined her counterclaim , and quashed the judgment of ORG . It retained the case for further consideration . On DATE the same court decided that the case was within the competence of ORG .", "On DATE ORG upheld the appeal of ORG ’s wife and varied the judgment of DATE as follows : it allowed the applicant ’s claims but rejected her husband ’s , it severed the joint tenancy between ORG and his wife , and it allocated their apartment to ORG to enable the applicant to recover her financial claims . The judgment was enforceable .", "On DATE ORG upheld that judgment in a final decision .", "DATE the applicant requested CARDINAL different bailiffs to enforce the judgment in her favour . The bailiffs took various steps , including requesting expert reports and putting ORG ’s apartment on sale by public auction .", "On DATE ORG requested ORG in GPE to assign a police officer to accompany the bailiff to ORG ’s apartment . On DATE it ordered ORG to pay the judgment debt to the applicant , and stipulated that his apartment would be put on sale if he did not .", "On DATE the bailiff recorded that the applicant had received part of the amount due and had requested continued execution for the remainder .", "On DATE ORG sold the apartment . The applicant and her husband lodged a civil action seeking a declaration that the sale contract was null and void on the ground that ORG had attempted to become insolvent . On DATE ORG by a final decision dismissed the action as groundless .", "On DATE the applicant , through the bailiff , requested the court to validate a seizure of property . On DATE ORG rejected the application as being statute - barred ." ]

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[ "The applicant was born in the NORP GPE ( SSR ) of GPE in DATE and acquired citizenship of GPE following the collapse of ORG ( GPE ) .", "NORP In DATE his brother bought a house with a plot of land in the village of GPE in LOC of GPE . In DATE the applicant , his CARDINAL - brother and their mother came from GPE to live there .", "On DATE the applicant married a NORP national and they had a daughter in DATE .", "In the meantime , in DATE the applicant applied for a residence permit . He was required to undergo a medical examination during which he tested positive for HIV . On account of that circumstance , his application for a residence permit was refused . The refusal was upheld at final instance by ORG on DATE .", "In DATE the applicant filed a new application for a temporary residence permit . Following his application , on DATE ORG determined that he had been unlawfully resident in GPE ( an offence under LAW ) and imposed a fine of MONEY .", "By a decision of CARDINAL DATE , ORG of the Oryol Region rejected his application for a residence permit by reference to section MONEY ) of LAW , which restricted the issue of residence permits to foreign nationals who could not show their HIVnegative status . The decision indicated that the applicant was to leave GPE within DATE or be subject to deportation . The applicant challenged the refusal in court .", "On DATE the ORG of the Oryol Region rejected his complaint , finding as follows :", "“ Taking into account that Mr PERSON is HIV - positive , the court considers that his application for temporary residence in GPE was lawfully rejected . ”", "The applicant lodged an appeal , relying on ORG decision of CARDINAL DATE ( see paragraph CARDINAL below ) and the relevant ORG documents on Aids prevention . On DATE ORG rejected his appeal in a summary fashion .", "On DATE the applicant underwent a medical examination at ORG . He was diagnosed with the progressive phase of HIV , and hepatitis B and C , and was prescribed “ highly active antiretroviral therapy ” ( ORG ) for life - saving indications .", "On DATE the ORG refused to institute supervisory - review proceedings and upheld the previous judgments as lawful and justified , finding :", "“ In his application for supervisory review , PERSON argued that the courts did not take into account his family situation and state of health when deciding on his application for a residence permit , which was at variance with ORG decision of CARDINAL DATE . This argument is not a ground for quashing the judicial decisions .", "The applicable laws governing the entry and residence of foreign nationals in GPE do not require the law - enforcement authorities or the courts to determine the state of health of HIV - infected foreign nationals or the clinical stage of their disease for the purpose of deciding whether a residence permit may be issued .", "When deciding on the issue of temporary residence for an HIV - positive individual , the courts may , but are not obliged , to take into account the factual circumstances of a specific case on the basis of humanitarian considerations .", "In addition , a foreign national who applies for a residence permit in GPE must produce a certificate showing his HIV - negative status ; if his status is HIV - positive , the law prohibits the said permit from being issued . ”", "The relevant parts of the LAW to LAW read as follows :", "“ Recognising that the chronic disease caused by the human immunodeficiency virus ( HIV )", "– is spread widely throughout the world ,", "– has grave socio - economic and demographic consequences for GPE ,", "– poses a threat to personal , public and national security , and a threat to the existence of humankind ,", "– calls for the protection of the rights and lawful interests of the population ... ”", "Pursuant to section CARDINAL ) of the LAW , the ORG guarantees free medical assistance to NORP nationals who are HIV - positive .", "Section CARDINAL(CARDINAL ) provides that foreign nationals and stateless persons who are in the NORP territory are to be deported once it is discovered that they are HIV - positive .", "Section CARDINAL of LAW provides that foreign nationals who do not require a visa to enter GPE may stay in GPE for a period not exceeding DATE and must leave GPE upon expiry of that period .", "Section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) establishes that an alien who is married to a NORP national or who has a NORP child is eligible for a DATE residence permit , independently of the professional quotas determined by the Government .", "Section CARDINAL(CARDINAL ) and Government Resolution no . CARDINAL of DATE define the list of documents that must be enclosed with an alien ’s application for a residence permit . Among other documents , an applicant must produce a medical certificate showing that he or she is not HIV - positive .", "Section CARDINAL contains the list of grounds for refusing a temporary residence permit or annulling a previously issued residence permit . In particular , an application for a residence permit will be refused if the foreigner is a drug abuser or is unable to produce a certificate showing that he or she is not HIV - positive ( section CARDINAL(CARDINAL)(CARDINAL ) ) .", "According to paragraph CARDINAL of the Rules on ORG in GPE ( Government Resolution no . CARDINAL of DATE ) , only emergency treatment may be provided to foreign nationals free of charge . Paragraph CARDINAL stipulates that other medical assistance may be provided on a fee basis", "On DATE ORG rejected a constitutional complaint introduced by a NORP national , Mr X. , who was HIV - positive and lived in GPE with his NORP wife and daughter ( decision no . MONEY ) . Mr X. complained that section CARDINAL ) of LAW and section CARDINAL ) of LAW violated his right to respect for his family life and his right to medical assistance and were also discriminatory .", "ORG held that the contested provisions were compatible with LAW as the restriction on temporary residence of HIV - positive foreign nationals had been imposed by the legislature for the protection of constitutional values , the principal one being the right to State protection of public health ( see paragraph CARDINAL of ORG judgment ) .", "Referring to LAW on HIV / Aids of DATE , the resolutions of ORG Human Rights and other international instruments prohibiting HIV - related discrimination , as well as this ORG ’s case - law on the expulsion of foreign nationals in general and HIV - positive foreigners in particular , the Constitutional Court emphasised the principle of proportionality in respect of the measures adopted in pursuance of constitutional aims and noted :", "“ It follows that , confronted with a conflict between equally protected constitutional values , the law - enforcement authorities and courts may take into account , on the basis of humanitarian considerations , the factual circumstances of a specific case in determining whether an HIV - positive individual is eligible for temporary residence in GPE .", "Thus , the provisions of section CARDINAL(CARDINAL ) of LAW and section CARDINAL ) of LAW do not exclude the possibility that the law - enforcement authorities and courts may – on the basis of humanitarian considerations – take into account the family situation , the state of health of the HIV - positive foreign national or stateless person , and other exceptional but meritorious circumstances in determining whether the person should be deported from GPE and whether he or she should be admitted for temporary residence in the NORP territory . In any event , the individual concerned should comply with the obligation to respect the legally imposed preventive measures aimed at curtailing the spread of HIV . ” ( See paragraph CARDINAL of ORG judgment . )", "Article CARDINAL of the Criminal Code provides for criminal liability for knowingly infecting another person with HIV or for knowingly exposing someone to the risk of HIV infection . These acts are punishable by deprivation of liberty of DATE .", "On DATE ORG adopted the Declaration of Commitment on HIV / Aids ( Resolution S-CARDINAL/CARDINAL ) which provides , in particular :", "“ CARDINAL . We , Heads of State and Government and representatives of ORG , assembled at ORG ... to review and address the problem of HIV / Aids in all its aspects , as well as to secure a global commitment to enhancing coordination and intensification of national , regional and international efforts to combat it in a comprehensive manner ;", "...", "Noting further that stigma , silence , discrimination and denial , as well as a lack of confidentiality , undermine prevention , care and treatment efforts and increase the impact of the epidemic on individuals , families , communities and nations and must also be addressed ;", "...", "Recognising that the full realisation of human rights and fundamental freedoms for all is an essential element in a global response to the HIV / Aids pandemic , including in the areas of prevention , care , support and treatment , and that it reduces vulnerability to HIV / Aids and prevents stigma and related discrimination against people living with or at risk of HIV / Aids ;", "...", "Affirming the key role played by the family in prevention , care , support and treatment of persons affected and infected by HIV / Aids , bearing in mind that in different cultural , social and political systems various forms of the family exist ;", "...", "...", "By DATE , enact , strengthen or enforce , as appropriate , legislation , regulations and other measures to eliminate all forms of discrimination against and to ensure the full enjoyment of all human rights and fundamental freedoms by people living with HIV / Aids and members of vulnerable groups , in particular to ensure their access to , inter alia , education , inheritance , employment , health care , social and health services , prevention , support and treatment , information and legal protection , while respecting their privacy and confidentiality ; and develop strategies to combat stigma and social exclusion connected with the epidemic ;", "... ”", "ORG on Human Rights first spoke out against HIV / Aids - related discrimination and stigma in its ORG no . CARDINAL on the protection of human rights in the context of human immunodeficiency virus ( HIV ) and acquired immunodeficiency syndrome ( Aids ) , which was adopted at its CARDINALrd meeting on DATE . The relevant parts of the resolution read as follows :", "“ CARDINAL . ORG that discrimination on the basis of Aids or HIV status , actual or presumed , is prohibited by existing international human rights standards , and that the term ‘ or other status’ in non - discrimination provisions in international human rights texts can be interpreted to cover health status , including HIV / Aids ;", "Calls upon all GPE to ensure , where necessary , that their laws , policies and practices , including those introduced in the context of HIV / Aids , respect human rights standards , including the right to privacy and integrity of people living with HIV / Aids , prohibit HIV / Aids - related discrimination and do not have the effect of inhibiting programmes for the prevention of HIV / Aids and for the care of persons infected with HIV / Aids ;", "... ”", "ORG upheld its stance against discrimination in the context of HIV / Aids in its subsequent ORG no . CARDINAL , adopted at its CARDINALst meeting on DATE .", "Article CARDINAL § CARDINAL of ORG guarantees that the rights recognised therein “ will be exercised without discrimination of any kind as to race , colour , sex , language , religion , political or other opinion , national or social origin , property , birth or other status ” . In its General PERSON no . CARDINAL of DATE on non - discrimination in economic , social and cultural rights , ORG expressly included health status and specifically HIV status , among “ other status ” grounds referred to in LAW :", "“ CARDINAL . Health status refers to a person ’s physical or mental health . GPE Parties should ensure that a person ’s actual or perceived health status is not a barrier to realising the rights under LAW . The protection of public health is often cited by GPE as a basis for restricting human rights in the context of a person ’s health status . However , many such restrictions are discriminatory , for example , when HIV status is used as the basis for differential treatment with regard to access to education , employment , health care , travel , social security , housing and asylum . ... ”", "ORG of ORG has touched upon the subject of HIV / Aids in a number of documents . Recommendation CARDINAL ( DATE ) on Aids and human rights emphasised the following points :", "“ CARDINAL . Noting that , although ORG has been concerned with prevention ever since DATE , the ethical aspects have been touched upon only cursorily ;", "Considering nevertheless that it is essential to ensure that human rights and fundamental freedoms are not jeopardised on account of the fear aroused by Aids ;", "Concerned in particular at the discrimination to which some Aids victims and even seropositive persons are being subjected ;", "...", "Recommends that ORG :", "A. instruct ORG to give priority to reinforcing the non - discrimination clause in LAW , either by adding health to the prohibited grounds of discrimination or by drawing up a general clause on equality of treatment before the law ;", "...", "D. invite the member ORG :", "...", "not to refuse the right of asylum on the sole ground that the asylum - seeker is contaminated by the HIV virus or suffers from Aids ;", "... ”", "ORG on HIV / Aids in LOC reaffirmed ORG commitment to combating all forms of discrimination against people living with HIV / Aids :", "“ CARDINAL . While emphasising that the HIV / Aids pandemic is an emergency at the medical , social and economic level , the ORG calls upon parliaments and governments of ORG to :", "NORP ensure that their laws , policies and practices respect human rights in the context of HIV / Aids , in particular the right to education , work , privacy , protection and access to prevention , treatment , care and support ;", "protect people living with HIV / Aids from all forms of discrimination in both the public and private sectors ... ”", "LAW on the Rights of Persons with Disabilities , which entered into force on DATE and which GPE signed but has not ratified , provides , in particular :", "“ CARDINAL . DATE States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds . ... ”", "“ CARDINAL . DATE States Parties shall recognise the rights of persons with disabilities to liberty of movement , to freedom to choose their residence and to a nationality , on an equal basis with others , including by ensuring that persons with disabilities :", "...", "( b ) are not deprived , on the basis of disability , of their ability to obtain , possess and utilise documentation of their nationality or other documentation of identification , or to utilise relevant processes such as immigration proceedings , that may be needed to facilitate exercise of the right to liberty of movement ;", "... ”", "“ CARDINAL . DATE States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage , family , parenthood and relationships , on an equal basis with others ... ”", "The UNAIDS / IOM ( ORG Programme on HIV / ORG ) statement on HIV / Aids - related travel restrictions of DATE contained the following recommendations :", "“ CARDINAL . HIV / Aids should not be considered to be a condition that poses a threat to public health in relation to travel because , although it is infectious , the human immunodeficiency virus can not be transmitted by the mere presence of a person with HIV in a country or by casual contact ( through the air , or from common vehicles such as food or water ) . HIV is transmitted through specific behaviours which are almost always private . Prevention thus requires voluntary acts and can not be imposed . Restrictive measures can in fact run counter to public health interests , since exclusion of HIV - infected non - nationals adds to the climate of stigma and discrimination against people living with HIV and Aids , and may thus deter nationals and non - nationals alike from coming forward to utilise HIV prevention and care services . Moreover , restrictions against non - nationals living with HIV may create the misleading public impression that HIV / Aids is a ‘ LOC problem that can be controlled through measures such as border controls , rather than through sound public health education and other prevention methods .", "...", "Restrictions against entry or stay that are based on health conditions , including HIV / Aids , should be implemented in such a way that human rights obligations are met , including the principle of non - discrimination , non - refoulement of refugees , the right to privacy , protection of the family , protection of the rights of migrants , and protection of the best interests of the child . Compelling humanitarian needs should also be given due weight .", "Any health - related travel restriction should only be imposed on the basis of an individual interview / examination . In case of exclusion , persons should be informed orally and in writing of the reasons for the exclusion .", "Comparable health conditions should be treated alike in terms of concerns about potential economic costs relating to the person with the condition . Those living with HIV / Aids who seek entry for short - term or long - term stays should not be singled out for exclusion on this financial basis .", "Exclusion on the basis of possible costs to health care and social assistance related to a health condition should only be considered where it is shown , through individual assessment , that the person requires such health and social assistance ; is likely in fact to use it in the relatively near future ; and has no other means of meeting such costs ( e.g. through private or employment - based insurance , private resources , support from community groups ) ; and that these costs will not be offset through benefits that exceed them , such as specific skills , talents , contribution to the labour force , payment of taxes , contribution to cultural diversity , and the capacity for revenue or job creation .", "If a person living with HIV / Aids is subject to expulsion ( deportation ) , such expulsion ( deportation ) should be consistent with international legal obligations including entitlement to due process of law and access to the appropriate means to challenge the expulsion . Consideration should be given to compelling reasons of a humanitarian nature justifying authorisation for the person to remain . ...", "... ”", "The relevant parts of ORG consolidated version ) , published by ORG of the High Commissioner for Human Rights and UNAIDS , read as follows :", "“ CARDINAL . The key human rights principles which are essential to effective ORG responses to HIV are to be found in existing international instruments ... Among the human rights principles relevant to HIV / Aids are , inter alia :", "– the right to non - discrimination , equal protection and equality before the law ;", "...", "– the right to freedom of movement ;", "...", "ORG . Under international human rights law , ORG may impose restrictions on some rights , in narrowly defined circumstances , if such restrictions are necessary to achieve overriding goals , such as public health , the rights of others , morality , public order , the general welfare in a democratic society and national security . ...", "Public health is most often cited by ORG as a basis for restricting human rights in the context of HIV . Many such restrictions , however , infringe on the principle of non - discrimination , for example when HIV status is used as the basis for differential treatment with regard to access to education , employment , health care , travel , social security , housing and asylum . ...", "...", "There is no public health rationale for restricting liberty of movement or choice of residence on the grounds of HIV status . According to current international health regulations , the only disease which requires a certificate for international travel is yellow fever [ footnote omitted ] . Therefore , any restrictions on these rights based on suspected or real HIV status alone , including HIV screening of international travellers , are discriminatory and can not be justified by public - health concerns .", "Where States prohibit people living with HIV from longer - term residency due to concerns about economic costs , GPE should not single out HIV / Aids , as opposed to comparable conditions , for such treatment and should establish that such costs would indeed be incurred in the case of the individual alien seeking residency . In considering entry applications , humanitarian concerns , such as family reunification and the need for asylum , should outweigh economic considerations . ”", "NORP The report of ORG on HIV - related ORG , convened by UNAIDS in DATE , contained the following findings :", "“ The Task Team confirmed that HIV - specific restrictions on entry , stay and residence based on HIV status are discriminatory , do not protect the public health and do not rationally identify those who may cause an undue burden on public funds . In particular , ORG made the following findings :", "– ORG found no evidence that HIV - related restrictions on entry , stay and residence protect the public health and was concerned that they may in fact impede efforts to protect the public health .", "...", "– Restrictions on entry , stay and residence that specify HIV , as opposed to comparable conditions , and/or are based on HIV status alone are discriminatory .", "– Exclusion or deportation of HIV - positive people to avoid potential costs of treatment and support should be based on an individual assessment of the actual costs that are likely to be incurred , should not single out HIV , and should not override human rights considerations or humanitarian claims . ”", "In DATE UNAIDS published the survey “ Mapping of restrictions on the entry , stay and residence of people living with HIV ” . The latest version of the survey , updated in DATE , is available on its website .", "According to the survey , CARDINAL countries , territories and areas worldwide have no HIV - specific restrictions on entry , stay or residence . The other CARDINAL countries , territories or areas impose some form of restriction on the entry , stay and residence of people living with HIV based on their HIV status . The latter category includes CARDINAL ORG member GPE .", "None of ORG member GPE refuses to issue a visa or allow entry for a short - term stay on account of the individual ’s HIV status . GPE , GPE and GPE ) may deport individuals once their ORG status is discovered . Those GPE and CARDINAL others ( GPE , GPE and GPE ) require the person applying for a residence permit to show that he or she is HIV - negative . Finally , GPE requires a declaration as to whether the individual has a “ disease posing a threat to public health ” ." ]

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[ "The applicant was born in DATE . He is currently in accommodation in GPE provided by a non - governmental organisation .", "In DATE , like many other persons , the applicant and his family were displaced from GPE to GPE . In GPE , the applicant worked as a reporter and photographer , chiefly for the independent newspaper PERSON , whose editor - in - chief at the time was Mr PERSON . The applicant stated that the latter was well known as a champion of the free press in GPE and that his case had been dealt with in ORG DATE report , which referred in particular to the fact that he had been arrested and arbitrarily detained in that country on CARDINAL occasion on account of his work as a journalist . The applicant added that on DATE the British Section of Amnesty International had awarded Mr Mihretab its “ Special Award for Human Rights Journalism under Threat ” .", "The applicant and PERSON were arrested in DATE , apparently on account of their professional activities . They were held in FAC for DATE and DATE respectively .", "In that connection the applicant stated that he had been referred to – under the name of “ Yebio ” , a diminutive form of his pseudonym “ Yayneabeba ” – on a website dedicated to reform in GPE ( www.awate.com ) as CARDINAL of the CARDINAL journalists arrested on DATE at the same time as PERSON .", "Unlike PERSON , who fled to GPE in DATE , the applicant remained in GPE , in GPE , in order to take care of his widowed mother and his CARDINAL brothers and sisters . Some time after PERSON PERSON ’s departure – on an unspecified date – the police questioned the applicant about him . Police officers searched his home and found photographs which they considered to be compromising . The applicant was arrested and was subjected to ill - treatment , signs of which allegedly persist in the form of cigarette burns and injuries to his back caused by the position in which he was held for DATE , lying face down with his feet and hands tied above his back . He was subsequently imprisoned for DATE before falling ill and being transferred to hospital , from where he escaped by paying the guards , with the help of relatives of his maternal grandmother who worked there . He then hid in his grandmother ’s home in PERSON , where he was treated by a doctor . As soon as he had recovered he fled to GPE where one of his uncles lived . When an NORP was shot dead in GPE he decided to leave the country , as the NORP community there believed the killing had been carried out by NORP government agents in pursuit of opponents of the government .", "The applicant stated that he had travelled to GPE and , with the help of a smuggler and using a NORP passport ( in the name of “ PERSON ” or similar ) , which had been kept by the smuggler , had arrived in GPE - FAC in FAC TIME on DATE on a flight from GPE . He submitted that he had been held in the airport ’s international zone until DATE and had thus been unable to apply for leave to enter the country . TIME after his arrival he reported to the police station , saying that he was NORP and wished to apply for asylum . The police officer asked him to “ prove where [ he ] had come from , claiming that [ he ] was not NORP but NORP , and for the first time refused [ him ] permission to leave the international zone ” . According to the applicant , over DATE ( DATE and DATE ) , he went regularly to the police station – at each change of shift , or CARDINAL times – in the vain hope of finding a police officer who would deal with his application . He said that “ it was not until DATE that a new police officer whom [ he ] had not seen previously finally registered [ his ] application ” .", "The Government contested this version of the facts . They said that they had checked the passenger lists for flights from GPE which landed at FAC on DATE and DATE and DATE and that there had been no mention of anyone by the name of ORG , PERSON or ORG . They referred to the report by PERSON airport and border police dated DATE , which stated that the applicant had been questioned at TIME DATE .", "On DATE the applicant applied for leave to enter GPE as an asylum - seeker . He was questioned at TIME by a senior police officer ( officier de police judiciaire ) assisted by an LANGUAGE - speaking interpreter . The record of the interview simply states that “ the interviewee did not provide any evidence in support of his statements ” . The decision to hold the applicant in the waiting zone was taken by the administrative authority on that date and time , for an initial period of TIME , which was subsequently extended ( see paragraph CARDINAL below ) .", "NORP The applicant said that he had been interviewed for the first time on DATE by an official from ORG for ORG ( OFPRA ) , who had recommended that the applicant be granted leave to enter the country as an asylum - seeker . The Government , for their part , contended that no recommendation had been issued on DATE . The record of the interview and the proposed recommendation , both drafted by the official concerned , had been considered unsatisfactory by the official ’s immediate superior , who was responsible for approving them . For that reason the applicant had been interviewed a second time , on DATE , by the latter official ( assisted by an interpreter ) . The official concerned issued the following recommendation that the applicant be refused leave to enter :", "“ Statement taken in Amharic through an ORG interpreter", "Reason for the application ? My parents are of NORP origin . We had NORP nationality and lived in GPE . In DATE the NORP authorities told us we were not NORP . We were expelled from GPE to GPE . I was supposed to sit my school - leaving exams DATE , but was unable to sit them in GPE . I worked in a garage for DATE , and then did my national service . While I was there I met a guy who was a journalist . When I PERSON finished my service I worked with this journalist friend as a cameraman and photographer , and we travelled together on reporting assignments . My friend was having problems with the authorities and wanted to leave the country . As soon as I got back the authorities questioned me about my friend and put me in prison . While I was in prison the police searched my house and found CARDINAL photos which they considered compromising . Then they started torturing me with cigarettes . I stayed in prison for DATE until I fell ill with tuberculosis . They took me to hospital . By chance , it was the hospital where some of my maternal grandmother ’s relatives worked . They bribed the guards , brought me clothes and helped me to escape . I went to my grandmother ’s place in Areza and stayed there for DATE while I was being treated . Then I left the country secretly for GPE . I found work straight away in a garage in GPE , but there were NORP agents around , and an NORP who worked not far away was killed . I was afraid and went to GPE , where I worked as a porter on the quays . I stayed in GPE for DATE in all ( DATE in GPE , DATE in GPE and DATE in GPE ) . My uncle sold his car to pay for my trip . I travelled to GPE before coming to GPE . My uncle found the network of people smugglers . I do n’t know how they organised things .", "What is your friend called and how did you meet him ? His name is PERSON , he ’s a friend of the family , he knew my parents in GPE . When we moved back to GPE , I spent DATE doing my national service . After that I was in the reserves and worked in an army garage but did n’t wear a uniform . That was when my friend arranged for me to go and work for him , by acting as a guarantor for me .", "Can you give some examples of events you covered ? We covered the student strikes in GPE in DATE ( no further details given ) .", "What were the CARDINAL “ compromising ” photos found at your home ? I do n’t know , I ca n’t remember .", "What newspaper did your friend PERSON work for ? PERSON ) . What was his job ? Editor - in - chief .", "Do you know what kind of problems your friend had with the authorities ? There were CARDINAL main reasons . Firstly , my friend was in favour of a LAW and , secondly , CARDINAL ministers were imprisoned and my friend had published their biographies . They were put in prison just after the GPE strike in DATE .", "When did your friend leave the country ? It was in DATE , when all the journalists were arrested .", "Have other journalists been arrested ? All the NORP journalists are in prison . Do you know other journalists from PERSON who were arrested ? ( No reply ) . Other photographers ? ( No reply ) .", "Can you give more details about your arrest ( date , circumstances , place of detention ) ? I was arrested in DATE or DATE . They took me to FAC , where I spent DATE .", "Were you not arrested “ as soon as you got back ” to LOC ? No , I continued working here and there for DATE .", "What has become of your family ? My father became ill and died before the family was expelled . My mother and my CARDINAL brothers and CARDINAL sisters live in GPE . My brothers and sisters are studying .", "What are you afraid of if you go back ? When I was arrested , the main thing they wanted to know was what network my friend had used to leave the country . I think they ’re still trying to get that information .", "Is this your real name ? Yes , I do n’t have any other name , I never have had .", "Have you anything to add ? No .", "Reasoned recommendation", "Mr PERSON , an NORP national , has stated that he worked as a photographer with a family friend who is a journalist . According to Mr PERSON , in DATE , while they were on a reporting assignment on the NORP border , the journalist took the opportunity to leave GPE . On his return to GPE , PERSON continued to work for DATE before being arrested by the NORP authorities . He was placed in detention for DATE and was regularly questioned about the circumstances surrounding the departure of his friend and colleague . After contracting a serious illness he was transferred to hospital , from where he managed to escape with the help of family members working there . He then stayed with his grandmother for DATE before leaving GPE for GPE , where he lived and worked for DATE .", "However , PERSON account contains a large number of inaccuracies and erroneous references which cast doubt on the truth of his statements . While the episode in which several journalists were arrested in GPE is very well known and received widespread media coverage , PERSON account bears no relation to what actually happened . The NORP journalists were arrested in DATE , not in DATE , and the applicant displays no knowledge of the reasons leading to the closing - down of the newspapers and the arrest of the journalists . The editor - in - chief of the newspaper PERSON also left GPE in DATE ( it therefore seems impossible that he could have covered the student strikes in DATE ) . The circumstances of his departure , accompanied by another reporter from the same newspaper , do not tally either with PERSON statements . It seems surprising to say the least that , apart from the editor - in - chief of PERSON , he is unable to name any other journalist or photographer arrested by the NORP government of DATE , or to name any other newspaper that was banned . Likewise , it is extremely surprising that PERSON is only able to cite – in a very sketchy and imprecise way – one event which he covered as a photographer . His lack of knowledge is such that it raises serious doubts as to whether he was actually engaged in this activity . Given the widespread media coverage of the events at the time , it seems strange that PERSON name does not appear anywhere , either as a member of staff of PERSON or as one of the persons arrested . All these factors taken together suggest that PERSON is attempting to falsify his past .", "ORG for ORG takes the view that the application for leave to enter GPE as an asylum - seeker made by Mr PERSON should be considered as manifestly unfounded , and therefore issues a", "RECOMMENDATION TO REFUSE LEAVE TO ENTER ”", "On DATE ORG held that the applicant ’s application for leave to enter NORP territory as an asylum - seeker was “ manifestly unfounded ” . It therefore rejected the application and decided to remove him “ to GPE , or if need be to any country where he may be legally admissible ” ( the applicant claimed that PERCENT of the applications made at the airport were rejected in this way ) . The decision read as follows :", "“ ...", "Having regard to LAW of DATE relating to ORG ;", "Having regard to ORG , and in particular Articles L. CARDINAL - CARDINAL and L. CARDINAL - CARDINAL thereof ;", "Having regard to Decree no . CARDINAL - CARDINAL of CARDINAL DATE as amended implementing section CARDINAL of the Ordinance of DATE , as amended in respect of leave to enter NORP territory , and in particular LAW thereof ;", "Having regard to the application for leave to enter GPE as an asylum - seeker made at FAC on DATE by X , purporting to be PERSON or PERSON , born on DATE and of NORP nationality ;", "Having regard to the report drawn up by the border police on DATE ;", "Having consulted ORG for ORG on DATE ;", "X , who purports to be PERSON or PERSON , an NORP national , has stated that during his national service he met a journalist , editor - in - chief of the newspaper PERSON ) , for whom he worked as a cameraman and photographer after completing his service . The latter had had problems with the authorities because of his support for a LAW and because he had published biographies of CARDINAL ministers imprisoned after the student strikes in DATE . His journalist friend left the country in DATE after they had carried out a reporting assignment on the NORP border . He himself returned to GPE and continued working . After DATE , in DATE or DATE , the authorities questioned him on the circumstances in which his friend and colleague had left the country . The police found CARDINAL compromising photographs at his home and he was later subjected to illtreatment . He was imprisoned for DATE and , after falling ill , was transferred to the hospital where relatives of his grandmother worked . He escaped from the hospital by bribing the guards and went to PERSON , staying there for DATE before travelling to GPE , where he lived and worked for DATE .", "However , X ’s statements contain numerous inconsistencies which detract from their credibility . His account does not tally with the actual events to which he refers , namely the arrest of several journalists in GPE , which was very well known and received widespread media coverage . The NORP journalists were arrested in DATE , not in DATE , and X displays no knowledge of the reasons leading to the closing - down of the newspapers and the arrest of the journalists . Moreover , the editor - in - chief of the newspaper PERSON left GPE in DATE and could not therefore have covered the student strikes in DATE as X claims . The circumstances of the editor ’s departure , together with another reporter from the same newspaper , do not tally either with X ’s statements . In addition , there is no proof of his professional activity : it is very surprising that he is unable to name any other newspaper that was banned or any other journalist or photographer arrested by the NORP government of DATE . It is also astonishing that X is able to cite only one event which he covered as a photographer , and in a very sketchy and imprecise way . Finally , his name does not appear anywhere , either as a member of staff of PERSON or as one of the persons arrested , despite the widespread media coverage of the events at the time . All these factors taken together cast doubt on the sincerity of his application and whether it is well founded .", "Consequently , the application for leave to enter GPE for the purposes of asylum made by X ... , purporting to be PERSON or PERSON , is to be considered manifestly unfounded .", "Under LAW of ORG , directions are to be given for his removal to GPE , or if need be to any country where he may be legally admissible ... ”", "On DATE the applicant made an urgent application to ORG under Article L. CARDINAL - CARDINAL of FAC , seeking an order requiring the Minister of the ORG to grant him leave to enter GPE in order to lodge an application for asylum . He argued that the refusal to grant him leave to enter amounted to a serious and manifestly unlawful breach of the right of asylum – a fundamental freedom whose corollary was the right to apply for refugee status , entailing the right to temporary residence in the country DATE and of the right to life and the right not to be subjected to inhuman or degrading treatment within the meaning of LAW . In that regard the applicant maintained , in particular , that the Ministry had not only exceeded the scope of its powers in examining the substance of his asylum application , but had also committed an error of assessment in finding the application manifestly unfounded . He stressed in particular that , as a cameraman and photographer working for a journalist , he had been subjected to persecution in his country of origin , where he had been imprisoned twice and subjected to ill - treatment , before seeking refuge in GPE , from where he had fled as his life had been in danger .", "The applicant submitted to the urgent - applications judge the following statement , drawn up DATE by the non - governmental organisation Reporters without ORG ( Reporters sans frontières ) :", "“ ... Reporters without ORG , an international organisation dedicated to defending freedom of the press , wishes to draw your attention to the case of PERSON , a journalist and NORP national .", "Thanks to the efforts of our permanent correspondents , we are in a position to confirm that Mr PERSON worked as a cameraman and journalist . We have contacted the NORP journalist PERSON , now in exile in GPE , who confirmed that he worked with PERSON . He also confirmed that the CARDINAL men were held at the same time in FAC , CARDINAL of the harshest prisons in the country , in very difficult conditions .", "While mindful of the deadlines which must be met in examining this case and carrying out the necessary checks , I would nevertheless stress that Reporters without ORG supports PERSON application for political asylum . We would welcome the opportunity to meet with him in order to study the case more closely and furnish all the evidence required for the purposes of his application . We would be greatly obliged if you would grant him leave to enter GPE ... ”", "In addition , the applicant produced CARDINAL e - mails in LANGUAGE sent by PERSON Mihretab to Reporters without Borders on DATE ( Mr Mihretab sent a third , similar , e - mail to the applicant ’s counsel on DATE ) . In the CARDINAL e - mails , PERSON confirmed that he had known PERSON for a long time . Having been shown a photograph of the applicant , he stated that it was indeed PERSON , a journalist and dissident activist who had worked as a freelance photographer for the newspaper PERSON , and that they had been detained together for DATE in FAC . Mr PERSON added that the applicant had suffered a great deal and had undergone numerous ordeals on account of his involvement in campaigning for democratic change and his work with the independent press . In view of the current situation in GPE and the fact that the applicant , who had been held in FAC , was known to the authorities , he would undoubtedly be arrested in that country . His life would be in danger and he would run the risk at the very least of being tortured and of “ disappearing ” like very many journalists , dissidents and other activists .", "On DATE the urgent - applications judge of ORG issued an order rejecting the applicant ’s application , without holding a hearing . The order read as follows :", "“ ...", "Article L. CARDINAL - CARDINAL of the Administrative Courts Code states as follows : ‘ Where such an application is submitted to him or her as an urgent matter , the urgent - applications judge may order whatever measures are necessary to protect a fundamental freedom which has been breached in a serious and manifestly unlawful manner by a publiclaw entity or an organisation under private law responsible for managing a public service , in the exercise of their powers . The urgent - applications judge shall rule within fortyeight hours.’ Article L. CARDINAL - CARDINAL of the same LAW provides : ‘ The urgentapplications judge shall give a ruling following written or oral adversarial proceedings . Where the judge is requested to order the measures referred to in Articles L. CARDINAL - CARDINAL and PERSON , to amend them or bring them to an end , he or she shall inform the parties without delay of the date and time of the public hearing ... ’ Lastly , Article CARDINAL of the PERSON provides : ‘ Where the application is not urgent or where it is clear from examination of the application that it does not fall within the jurisdiction of the administrative courts , is inadmissible or is unfounded , the urgent - applications judge may reject it in a reasoned order , without applying the first CARDINAL paragraphs of Article PERSON", "Article L. CARDINAL - CARDINAL of the Immigration and Asylum Code , meanwhile , states as follows : ‘ An alien who arrives in GPE by ... air and who ( a ) is refused leave to enter NORP territory or ( b ) applies for asylum may be held in a waiting zone situated in ... an airport , for the time strictly necessary to arrange his departure and , if he is an asylum - seeker , to investigate whether his application is manifestly unfounded ... LAW CARDINAL of the Decree of CARDINAL DATE as amended states : ‘ Where an alien arriving at the border applies for asylum , a decision to refuse him or her leave to enter GPE may be taken only by the Minister of the Interior , after consultation with ORG for ORG Persons.’", "The documents in the file show that Mr PERSON , an NORP national , arrived in GPE by air and on DATE requested leave to enter the country as an asylum - seeker . In accordance with the provisions of Article L. CARDINAL - CARDINAL of ORG , cited above , PERSON was held in the waiting zone while his application for asylum was examined . After consulting ORG for ORG on DATE , the Minister of the ORG and ORG , in the impugned decision of DATE , refused Mr PERSON leave to enter GPE on the ground that his asylum application was manifestly unfounded .", "It is true that the right of asylum and its corollary , the right to request refugee status and , accordingly , to remain in GPE for the time necessary for the asylum application to be examined , constitute a fundamental freedom for aliens and that , in urgent cases , the urgent - applications judge may order whatever measures are necessary to protect that freedom on the basis of the above - mentioned provisions of Article PERSON of ORG , where the administrative authorities , in the exercise of their powers , have breached it in a serious and manifestly unlawful manner . However , such a breach can not result solely from the fact that , in accordance with Article L. CARDINAL - CARDINAL of ORG , the Minister of the ORG personally took a decision on the asylum application , in this case in the form of the decision of DATE , since under Article PERSON of the same Code ORG for ORG can consider only applications for refugee status made by aliens who have been granted leave to enter the country . Moreover , there is nothing in the case file to suggest that the refusal to grant Mr PERSON leave to enter the country DATE on account of the manifestly unfounded nature of his asylum application DATE was manifestly unlawful . In particular , the applicant did not provide sufficient and substantiated details as to his identity , his alleged professional activity as a cameraman and photographer in his country of origin , the persecution he alleged and the reasons for it , or the risks he would actually run were he to return to his country of origin or to GPE , where he was last resident , or any prima facie evidence capable of substantiating those risks or altering the Minister of the ORG ’s assessment of the asylum application . The only documents produced by PERSON , namely the testimony from a journalist who is a refugee in GPE , which contains very little detail , and a letter from Reporters without ORG , are insufficient to establish that he was at personal risk if he returned to his own country or to GPE .", "It follows from all the above considerations that the decision of DATE of the Minister of the ORG and ORG refusing Mr PERSON leave to enter GPE as an asylum - seeker can not be said to have breached his right to request refugee status in a serious and manifestly unlawful manner such as to justify ordering measures under LAW . Consequently , and in accordance with the abovementioned provisions of LAW of LAW , the applicant ’s application must be rejected as manifestly unfounded ... ”", "On DATE the applicant was accompanied to the NORP embassy by police officers . The applicant claimed that the authorities had presented his account of the events surrounding his asylum application – giving details of the circumstances in which he had fled and the names of the persons who had helped him – to the NORP ambassador . The ambassador had launched a violent verbal attack on him in her own language and refused to recognise him as a national of GPE and issue him with a laissez - passer .", "The Government denied that the applicant ’s account of events had been presented to the ambassador or that she had expressed a definite opinion on that occasion as to whether the applicant should be issued with a laissez - passer ( she had not informed the NORP authorities of her position on the matter until DATE ) .", "In a decision of DATE , “ in view [ among other considerations ] of the request made by ORG CARDINAL of its Rules of Court to suspend the applicant ’s removal until DATE ” , ORG granted the applicant leave to enter GPE . At the same time the applicant was issued with a safe conduct valid for DATE which referred also to the interim measure indicated to the respondent Government under Rule DATE to enable him to report to the prefecture and apply for a temporary residence permit as an asylum - seeker . With the help of ORG ( ORG – a non - governmental organisation made up of CARDINAL associations and trade unions ) and Reporters without Borders , he obtained a DATE residence permit from the GPE Prefecture on DATE , with a view to his lodging an asylum application with ORG ( which he duly did ) .", "As stated above , the decision to hold the applicant in the waiting zone for TIME was taken by the administrative authority on DATE at TIME ( see paragraph QUANTITY above ) . The measure was extended for a further TIME on DATE .", "On DATE the liberties and detention judge ( juge des libertés et de la détention ) of the ORG tribunal de grande instance – before whom the applicant had appeared , assisted by a lawyer and an interpreter – authorised the holding of the applicant for a further DATE , in an order giving the following reasons :", "“ Mr PERSON ’s application for political asylum is under consideration . He should continue to be held in the waiting zone . ”", "On DATE the same judge DATE before whom the applicant had again appeared , assisted as before – authorised the holding of the applicant in the waiting zone for DATE , in an order giving the following reasons :", "“ The asylum application was rejected on DATE . PERSON does not have a passport . He was taken to the NORP embassy on DATE and the authorities are waiting for him to be issued with a laissez - passer . He should continue to be held in the waiting zone . ”", "In a decision of CARDINAL DATE , following an appeal lodged by the applicant on DATE against the order of DATE , the ORG d’Etat held in the following terms that it was unnecessary to give a ruling :", "“ ...", "... Mr PERSON ... lodged an application with ORG which , in a decision of DATE , indicated to the NORP government under Rule CARDINAL of its Rules of Court that it was ‘ desirable , in the interests of the parties and of the proper conduct of the proceedings before it , not to remove the applicant to GPE TIME on DATE . In response to that request the Minister , in a decision of DATE taken after this appeal had been lodged , granted PERSON leave to enter GPE , thus enabling him to make an application for asylum . The appellant duly did so , having been issued on DATE with a temporary residence permit . The measure thus enacted has the same effect as the measure requested in the application to the urgent - applications judge , which was by definition temporary . In the circumstances , the arguments set out in Mr PERSON ’s appeal against the order rejecting his application have become devoid of purpose .", "... ”", "By a decision of DATE served on DATE , ORG granted the applicant refugee status . As a result , from that point on , LAW DATE relating to ORG acted as a bar to the applicant ’s expulsion to his country of origin . The Government produced a memorandum from the Deputy Head of ORG of OFPRA attesting to this . The memorandum stated that “ the Agency therefore considered in view , among other considerations , of the inhuman conditions of imprisonment to which [ the applicant ] had already been subjected in his country of origin , that his removal to GPE would place him at risk of persecution within the meaning of LAW ” .", "NORP The applicant stated that , during his time in the waiting zone in FAC , the authorities had omitted to carry out a medical examination capable of establishing whether his scars and injuries were the result of illtreatment . However , he had been able on several occasions ( on CARDINAL , DATE , DATE and DATE ) to meet with an employee from ORG in the organisation ’s office in the airport waiting zone . On DATE ORG drew up a written statement ( produced by the applicant ) certifying that the employee in question , in the course of her interviews with him , had observed traces of burns on CARDINAL of his arms at least . The statement added that she had noted “ a hollow in the [ applicant ’s ] lower back , which he explained had resulted from the torture inflicted on him in the PERSON camp . He demonstrated the position in which he had been forced to remain during his detention , lying face down and with his feet and hands tied above his back ” . The applicant also produced a statement written on DATE by the employee herself . In addition , apparently under the guidance of ORG , the applicant was examined on DATE by PERSON of the PERSON medical unit of ORG , who issued a medical certificate stating that the applicant did not require any specific medical treatment , but noting the presence of “ old scars on the left arm and the right and left knees ” .", "The fourth paragraph of the Preamble to LAW reads as follows :", "“ Any person persecuted on account of his or her actions in furtherance of freedom shall have a right of asylum within the territories of the Republic . ”", "The PERSON d’Etat has ruled that the constitutional right of asylum is a fundamental freedom and has as its corollary the right to apply for refugee status . This implies that aliens who request refugee status are authorised in principle to remain on NORP soil pending a ruling on their application . The PERSON d’Etat has also specified that only if an asylum application is “ manifestly unfounded ” ( see paragraph CARDINAL below ) may the Minister of the Interior refuse leave to enter the country , after consulting ORG for ORG ( OFPRA ) ( see , for example , ORG v. PERSON , order of CARDINAL DATE ) .", "Under the terms of ORG :", "“ Refugee status shall be granted to any person persecuted on account of his or her activities in furtherance of freedom and to any person in respect of whom ORG High Commissioner for Refugees exercises its mandate under the terms of ORG CARDINAL and CARDINAL of its Statute as adopted by ORG on DATE , or who meets the criteria laid down in DATE LAW of DATE relating to ORG . Such persons shall be governed by the applicable provisions concerning refugees laid down in the above - mentioned LAW . ”", "“ Subject to the provisions of Article L. CARDINAL - CARDINAL , subsidiary protection shall be afforded to persons who do not satisfy the criteria for obtaining refugee status referred to in Article PERSON but who demonstrate that they would be exposed to the following serious threats in their country :", "( a ) the death penalty ;", "( b ) torture or inhuman or degrading treatment or punishment ;", "( c ) in the case of civilians , a serious , direct and individual threat to their life or personal safety on account of widespread violence resulting from domestic or international armed conflict . ”", "“ The persecution taken into account in granting refugee status and the serious threats which may result in the granting of subsidiary protection may emanate from the ORG authorities , parties or organisations which control the ORG or a substantial part of the territory of the ORG , or from non - State agents in cases where the authorities defined in the following paragraph are unwilling or unable to afford protection .", "The authorities in a position to afford protection may be the ORG authorities or international and regional organisations . ”", "“ Persons who have access to protection in part of the territory of their country of origin may have their asylum application refused if they have no reason to fear persecution or a serious threat there and if it is reasonable to consider that they can remain in that part of the country . Account shall be taken of the overall conditions prevailing in that part of the country and of the personal situation of the applicant and the perpetrator of the persecution at the time a decision is taken on the asylum application . ”", "NORP Under the terms of LAW DATE ( ratified by GPE on DATE ) and LAW of DATE relating to ORG ( to which GPE acceded on DATE ) , a “ refugee ” is any person who “ owing to well - founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion , is outside the country of his nationality and is unable , or owing to such fear , is unwilling to avail himself of the protection of that country ; or who , not having a nationality and being outside the country of his former habitual residence as a result of such events , is unable or , owing to such fear , is unwilling to return to it ” . LAW reads as follows :", "“ CARDINAL . No Contracting State shall expel or return ( ‘ ORG ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race , religion , nationality , membership of a particular social group or political opinion .", "... ”", "The purpose of the procedure for claiming asylum at the border is to grant or refuse leave to enter GPE to aliens who arrive at the border by air without the necessary documents and request leave to enter the country as asylum - seekers . The procedure falls within the sphere of competence of ORG , which takes the decision whether or not to grant leave to enter , after consulting OFPRA ( decree of DATE amending LAW of CARDINAL DATE ) .", "Article L. CARDINAL - CARDINAL of the Immigration and Asylum Code states that “ [ a]n alien who arrives in GPE by rail , sea or air and who ( a ) is refused leave to enter NORP territory or ( b ) applies for asylum may be held in a waiting zone ... for the time strictly necessary to arrange his departure and , if he is an asylum - seeker , to investigate whether his application is manifestly unfounded ” .", "The Government indicated that the criteria applied in assessing whether or not requests for asylum made at the border were “ manifestly unfounded ” were based on those contained in the resolutions adopted by the ministers responsible for immigration of the member States of ORG , meeting in GPE on DATE and DATE , and on ORG ’s experience and practice . The criteria were as follows : “ the grounds of the application are not asylum - related ( economic grounds , pure personal convenience , etc . ) ; the application is based on deliberate fraud ( the applicant makes manifestly false claims as to his nationality , makes false statements , etc . ) ; the applicant ’s statements are devoid of any substance , do not contain any personal information or provide insufficient detail ; the applicant refers to a general situation of unrest or insecurity , without providing evidence relating to his personal situation ; his statements are fundamentally inconsistent or improbable or contain major contradictions , depriving his account of any credibility . ” In a judgment adopted in plenary on DATE in the case of ORG , the PERSON d’Etat held that the above resolutions did not have legal effect and could not therefore be relied on in assessing whether an asylum application was “ manifestly unfounded ” .", "Aliens who apply for asylum at the border may do so on arrival or at any time while in the waiting zone . The application is to be made to the border police , who draw up an asylum - application report and forward the file to ORG . All applicants are interviewed by an official from ORG ’s border asylum office with a view to establishing the reasons for the application . The office sends ORG a written recommendation stating its opinion as to whether or not the application is manifestly unfounded . ORG then decides whether or not to grant the applicant leave to enter GPE .", "If leave to enter is granted , the border police issue a safe conduct which gives the person concerned DATE in which to submit an asylum application under the ordinary - law procedure .", "If entry is refused , the person concerned is immediately returned to his or her country of origin or the country of provenance .", "As with all administrative decisions , an application may be made to the administrative court seeking the setting - aside of a decision refusing leave to enter . The application does not have suspensive effect .", "An “ urgent application for a stay of execution ” ( référé suspension ) or an “ urgent application for an order to protect the applicant ’s interests ” ( référé injonction ) ( also known as an “ urgent application for the protection of a fundamental freedom ” ( référé liberté ) ) – neither of which has suspensive effect DATE may also be made under Articles L. CARDINAL - CARDINAL and PERSON of FAC , which provide :", "“ When an application is made to set aside or vary an administrative decision , including a refusal , the urgent - applications judge may order that execution of the decision or certain of its effects be stayed where the urgent nature of the matter warrants it and where grounds are advanced capable of raising serious doubts , as the evidence stands , as to the lawfulness of the decision .", "Where an order is made staying execution , a ruling shall be given as soon as possible on the application to have the decision set aside or varied . The stay of execution shall end at the latest when a decision is taken on the application to have the decision set aside or varied . ”", "“ Where such an application is submitted to him or her as an urgent matter , the urgent - applications judge may order whatever measures are necessary to protect a fundamental freedom which has been breached in a serious and manifestly unlawful manner by a publiclaw entity or an organisation under private law responsible for managing a public service , in the exercise of their powers . The urgent - applications judge shall rule within TIME . ”", "Article L. CARDINAL - CARDINAL of the LAW states that the urgent - applications judge must in principle give a ruling following written or oral adversarial proceedings . Where the judge is requested to order the measures referred to in Articles PERSON and PERSON or to amend or discontinue such measures , he must inform the parties without delay of the date and time of the public hearing . However , Article CARDINAL provides for a “ filtering ” procedure which allows the urgent - applications judge , simply by means of an order giving reasons , to reject an application without giving the parties notice to appear or holding an adversarial hearing , if the matter is not urgent or if “ it is clear from examination of the application that it does not fall within the jurisdiction of the administrative court , is inadmissible or is unfounded ” .", "An appeal may be lodged with the ORG d’Etat within DATE of the decision being served . The PERSON d’Etat must rule within TIME .", "The PERSON d’Etat has specified that the notion of “ fundamental freedom ” within the meaning of Article PERSON of LAW “ encompasses , in the case of non - nationals who are the subject of specific measures governing their entry into and residence in GPE and who therefore , unlike NORP nationals , do not have free entry into the country , the constitutional right of asylum and its corollary , the right to apply for refugee status , the granting of which is decisive for the exercise by those persons of the freedoms enjoyed by non - nationals generally ” ( order of DATE by the urgent - applications judge in Hyacinthe ; see also the order of CARDINAL DATE in PERSON ) .", "In accordance with the principles of NORP administrative law , an urgent application , like any application to the courts , does not result in the immediate suspension of an administrative decision . However , the Government stated that “ in very general terms , where the administrative authority [ was ] aware that an urgent application ha[d ] been made to the administrative courts , it suspend[ed ] the measure refusing asylum until the judge ha[d ] given a ruling ” .", "The initial decision to hold a person in the waiting zone is made by the administrative authority in writing and giving reasons , for a period not exceeding TIME . The measure may be extended once on the same basis and for the same period ( Article PERSON of ORG ) . The liberties and detention judge intervenes for the first time after DATE in order to decide whether or not to extend the measure by a maximum of DATE . He or she intervenes again at the end of that period to rule on whether an exceptional extension of a further maximum of DATE should be granted ( Articles PERSON and PERSON ) .", "In principle , therefore , the maximum period for which a person can be held in the waiting zone is DATE . In exceptional cases , however , if an asylum application is made DATE , the liberties and detention judge may order an extension of DATE from the date of the application ( Article PERSON ) .", "The liberties and detention judge gives a ruling in the form of an order , after hearing evidence from the person concerned , in the presence of his or her lawyer if he or she has one , or after the latter has been duly informed . The judge may order extension of the measure or may refuse the request for extension and either release the person in question or place him or her under house arrest . The judge has discretion to rule on the application to extend made by the administrative authorities and may dismiss the grounds advanced by the authorities for the application and reject it accordingly ( ORG has specified that holding a person in the waiting zone “ is simply CARDINAL option open to the judge ” ; ORG , ORG , DATE ) . Normally speaking , the ruling is given in public ( Article PERSON ) . An appeal lies against such an order to the President of ORG or his or her delegate , who must rule within TIME ( Article PERSON ) .", "Aliens held in the waiting zone must be informed as soon as possible that they may request the assistance of an interpreter and a doctor , may speak to a lawyer or any other person of their choosing and may leave the waiting zone at any time for a destination outside GPE . This information must be conveyed to them in a language they understand ( Article L. CARDINAL - CARDINAL ) .", "The alien may request the judge to appoint a lawyer to represent him or her ( Article L. CARDINAL - CARDINAL ) . The ORG pays the lawyer ’s fees and those of the interpreters appointed to assist the alien during the court proceedings concerning his or her confinement in the waiting zone ( Article PERSON ) .", "ORG and , after DATE have elapsed , the liberties and detention judge , may visit the waiting zone to inspect the conditions in which the person concerned is being held . ORG may visit the waiting zones whenever he or she deems necessary and must do so at least once DATE . The NORP delegation to ORG High Commissioner for Refugees ( ORG ) , as well as some humanitarian associations , have access to the waiting zone as provided by Decree no . GPE of CARDINAL DATE as amended . In particular , they may hold talks in confidence with asylum - seekers being held there ( Articles L. CARDINAL - CARDINAL et seq . of ORG ) . The Government informed the ORG that , in accordance with an agreement concluded between the ORG and ORG , the latter was entitled to be present round the clock in order to provide legal assistance to aliens ; ORG was also on hand to provide humanitarian assistance ( likewise under the terms of an agreement ) .", "OFPRA , a public agency with legal personality and financial and administrative autonomy attached to ORG ( Article L. CARDINAL - CARDINAL of ORG ) is the authority responsible for granting refugee status and subsidiary protection ( Articles L. CARDINAL - CARDINAL and L. CARDINAL - CARDINAL ) .", "The asylum - seeker must report to a prefecture in order to obtain a temporary residence permit ( autorisation provisoire de séjour ) valid for DATE and to fill out the asylum application form . On receipt of the file , ORG sends the asylum - seeker a “ letter of registration ” which enables him or her , among other things , to obtain an acknowledgment of receipt of the asylum application . This is valid for DATE and can be renewed until such time as a decision has been taken by OFPRA and , as the case may be , by ORG .", "OFPRA gives its decision after a single examination procedure during which the asylum - seeker is given the opportunity to submit evidence in support of his or her claim and , as a rule , after evidence has been heard from the asylum - seeker ( Articles L. CARDINAL - CARDINAL and L. CARDINAL - CARDINAL ) .", "A decision by ORG refusing an application taken under Articles PERSON and L. CARDINAL - CARDINAL in particular may be appealed within DATE before ORG ( Article L. CARDINAL - CARDINAL ) , an administrative court with a president who is a member of the ORG d’Etat and is appointed by the latter ’s vice - president ( Article L. CARDINAL ) . The persons concerned may make representations to ORG and be assisted by a lawyer and an interpreter ( Article L. CARDINAL - CARDINAL ) .", "In principle , this appeal has suspensive effect and the temporary residence permit is renewed until ORG has reached its decision ( section CARDINAL of LAW of DATE ) . In that connection , LAW of ORG states as follows :", "“ Aliens who are granted leave to enter GPE shall have the right to remain until ORG ’s decision has been served or , where an appeal is lodged , until the decision of ORG has been served . They shall have DATE from the date of service of the decision not to extend or to withdraw their residence permit in which to leave NORP territory of their own accord . ”", "The PERSON d’Etat has also established the principle whereby aliens seeking refugee status have the right to remain in the country temporarily until a decision has been taken on their application , provided the application is not vexatious or submitted with undue delay ( PERSON d’Etat plenary , CARDINAL DATE , ORG ) .", "An appeal on points of law against the decision of ORG may be lodged with the ORG d’Etat within DATE . However , such appeal does not have suspensive effect ( ORG d’Etat , CARDINAL DATE , PERSON ) .", "An alien whose application for refugee status or for subsidiary protection has been the subject of a final refusal and who is not authorised to remain in GPE on any other basis must leave the country or face removal ( Article L. CARDINAL - CARDINAL of the Code ) . Aliens facing removal may , within TIME of the order for their removal being served ( if it is served by means of administrative procedure ) or within DATE ( if it is served by post ) , apply to the president of the administrative court to have the order set aside . The president or his or her delegate must rule on the application within TIME ( Article PERSON of the Code ) . The order may not be enforced before these time - limits have expired or , where an application is made to the president of the administrative court or his or her delegate , until he or she has given a ruling ( Article PERSON ) . An appeal against the judgment of the president of the administrative court or his or her delegate may be made within DATE to the president of ORG of the ORG d’Etat or a member of the ORG d’Etat to whom he or she delegates his or her powers ; such appeal does not have suspensive effect ( Article PERSON of the Code ) .", "Under LAW of the LAW , if the person concerned is granted refugee status or subsidiary protection , the administrative authority must repeal any order made for his or her removal . In the case of refugees , it must immediately issue the residence permit provided for in LAW , point CARDINAL ( valid for DATE and automatically renewable ) ; in the case of persons granted subsidiary protection , it must immediately issue the temporary residence permit provided for in Article PERSON ( valid for DATE , renewable ) .", "On DATE ORG R ( CARDINAL ) CARDINAL on the right of rejected asylum - seekers to an effective remedy against decisions on expulsion in the context of LAW of ORG , in which it called on member GPE to ensure that the following guarantees were complied with in their legislation or practice :", "“ CARDINAL . An effective remedy before a national authority should be provided for any asylum - seeker , whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment .", "NORP In applying paragraph CARDINAL of this recommendation , a remedy before a national authority is considered effective when :", "NORP that authority is judicial ; or , if it is a quasi - judicial or administrative authority , it is clearly identified and composed of members who are impartial and who enjoy safeguards of independence ;", "that authority has competence both to decide on the existence of the conditions provided for by LAW and to grant appropriate relief ;", "the remedy is accessible for the rejected asylum - seeker ; and", "NORP the execution of the expulsion order is suspended until a decision under CARDINAL . is taken . ”", "On DATE ORG adopted “ Twenty Guidelines on Forced Return ” . Guideline CARDINAL reads as follows :", "“ Guideline CARDINAL . Remedy against the removal order", "NORP In the removal order , or in the process leading to the removal order , the subject of the removal order shall be afforded an effective remedy before a competent authority or body composed of members who are impartial and who enjoy safeguards of independence . The competent authority or body shall have the power to review the removal order , including the possibility of temporarily suspending its execution .", "The remedy shall offer the required procedural guarantees and present the following characteristics :", "– the time - limits for exercising the remedy shall not be unreasonably short ;", "– the remedy shall be accessible , which implies in particular that , where the subject of the removal order does not have sufficient means to pay for necessary legal assistance , he / she should be given it free of charge , in accordance with the relevant national rules regarding legal aid ;", "– where the returnee claims that the removal will result in a violation of his or her human rights as set out in LAW . , the remedy shall provide rigorous scrutiny of such a claim .", "The exercise of the remedy should have a suspensive effect when the returnee has an arguable claim that he or she would be subjected to treatment contrary to his or her human rights as set out in LAW . [ real risk of being executed , or exposed to torture or inhuman or degrading treatment or punishment ; real risk of being killed or subjected to inhuman or degrading treatment by non - State actors , if the authorities of the State of return , parties or organisations controlling the ORG or a substantial part of the territory of the ORG , including international organisations , are unable or unwilling to provide appropriate and effective protection ; other situations which would , under international law or national legislation , justify the granting of international protection ] . ”", "As far back as DATE , ORG adopted Recommendation CARDINAL ( DATE ) on the right of asylum , in which it recommended that ORG insist that asylum procedures provide that “ while appeals [ were ] being processed , asylum - seekers [ could ] not be deported ” . In Recommendation CARDINAL ( DATE ) on the protection and reinforcement of the human rights of refugees and asylum - seekers in LOC , adopted on DATE , it called upon ORG “ to urge the member GPE ... to provide in their legislation that any judicial appeal should have suspensive effect ” .", "In its Resolution CARDINAL ( DATE ) on accelerated asylum procedures in ORG member GPE , adopted on DATE , ORG stressed in particular that “ [ t]he need for GPE to process asylum applications in a rapid and efficient manner must ... be weighed against the obligation to provide access to a fair asylum determination procedure for those who are in need of international protection ” . It specified that this “ balancing of interests ” did “ not imply in any circumstances that GPE may compromise with respect to their international obligations , including under the DATE LAW relating to ORG ... and its DATE Protocol and the DATE European Convention on Human Rights ... and its Protocols ” .", "In that ORG , ORG called on the governments of ORG member GPE to take the following measures ( among others ) :", "“ ...", "as regards border applicants , to :", "CARDINAL.CARDINAL.CARDINAL . NORP ensure , in accordance with the principle of non - discrimination , that all asylum - seekers are registered at the border and given the possibility of lodging a claim for refugee status ;", "NORP ensure that all asylum - seekers , whether at the border or inside the country , benefit from the same principles and guarantees in terms of their request for refugee status ;", "CARDINAL.CARDINAL.CARDINAL . NORP ensure adoption of clear and binding guidelines on treatment of asylum - seekers at border points , in accordance with international human rights and refugee law and standards ;", "as regards the right of appeal with suspensive effect : to ensure that the right to an effective remedy under LAW is respected , including the right to lodge an appeal against a negative decision and the right to suspend the execution of measures until the national authorities have examined their compatibility with LAW ;", "... ”", "The Commissioner for Human Rights issued a recommendation concerning the rights of aliens wishing to enter a ORG member ORG and the enforcement of expulsion orders ( CommDH(CARDINAL)CARDINAL ) . The recommendation , dated DATE , stresses in particular the following :", "“ CARDINAL . It is essential that the right of judicial remedy within the meaning of LAW ORG be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ORG . The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order . It must be capable of suspending enforcement of an expulsion order , at least where contravention of ORG CARDINAL or CARDINAL of the ORG is alleged . ”" ]

[ "13", "3" ]

[]

[]

[ "5" ]

[ "5-1" ]

[ "5-1-f" ]

[ "ORG In DATE a so - called \" Black Book \" ( zwartboek ) containing allegations of irregularities with regard to the financial dealings of ORG ( ORG , \" ABP \" ) was published anonymously .", "ORG Following a criminal investigation , the CARDINAL applicants were charged with forgery and corruption . At the time , PERSON was the Investments Manager of ORG . Mr PERSON was a businessman with interests in real estate development .", "ORG On DATE Mr PERSON was arrested and taken into police custody ( verzekering ) . He was subsequently placed in detention on remand ( voorlopige hechtenis ) .", "By order of CARDINAL DATE ( effective on CARDINAL DATE ) the review chamber ( raadkamer ) of ORG ( arrondissementsrechtbank ) of GPE suspended the detention on remand , allowing PERSON to return to his home on condition , inter alia , that he surrender his passport and report to the local police DATE . In addition , he was not allowed to communicate in any way with his co - accused , Mr PERSON . The obligation to report DATE to the police was lifted by the review chamber on DATE .", "ORG Towards DATE the public prosecutor ( officier van justitie ) summonsed PERSON to appear before ORG on DATE on CARDINAL counts of forgery , being an accessory to fraudulent bankruptcy , corruption and swindling .", "Mr PERSON filed an objection ( bezwaarschrift ) on DATE , as a result of which the summons lapsed ( section CARDINAL of LAW ( \" ORG \" ) as it then read ) . The objection was dismissed by ORG on DATE .", "On appeal the ' s - Hertogenbosch Court of Appeal decided on DATE to clear PERSON of CARDINAL charge , that of being an accessory to fraudulent bankruptcy , but found that there was a prima - facie case against him as regards the remainder . The decision of ORG was upheld by ORG ( PERSON ) on DATE .", "Mr PERSON was again summonsed to appear before ORG on DATE , this time on the charges allowed by ORG on DATE .", "ORG On DATE , after various adjournments and hearings , ORG acquitted PERSON of CARDINAL of the charges but convicted him of the remainder . It sentenced him to DATE imprisonment and ordered him to pay to the State MONEY ( NLG ) , that being the court 's estimate of the benefit derived by PERSON from the crimes of which he had been found guilty .", "ORG Both PERSON and the public prosecutor appealed against this judgment to the ' s - ORG . On DATE ORG acquitted PERSON on all charges .", "Mr PERSON was arrested on CARDINAL DATE . Like PERSON , he was taken into police custody and subsequently detained on remand . He remained in detention until DATE .", "On DATE his detention on remand was suspended on condition that he report DATE to the investigating judge and provide a surety of NLG CARDINAL . The order to report to the investigating judge was lifted on DATE . On DATE , at Mr PERSON request , the ' s - ORG rescinded the order of detention on remand altogether and ordered the return of the surety .", "Mr PERSON was summonsed to appear on DATE before ORG of GPE .", "ORG On DATE , after various adjournments and hearings , ORG convicted him on a number of counts of fraud , corruption and forgery and sentenced him to DATE imprisonment .", "ORG Both the public prosecutor and Mr PERSON appealed against ORG judgment to the ' s - ORG .", "On DATE ORG acquitted PERSON on all charges .", "Mr PERSON was suspended from his duties on CARDINAL DATE by the Minister for ORG ( Minister PERSON ) following the opening of the criminal investigation . On DATE the Minister decided to withhold CARDINAL of his salary for DATE and to stop his salary entirely thereafter . This apparently left him without an income from public employment from DATE until CARDINAL DATE , when he became entitled to a pension .", "In DATE , following the acquittal , the Minister for ORG paid PERSON half the amount which had been stopped .", "Mr PERSON 's costs of legal assistance in the national proceedings totalled NLG CARDINAL,CARDINAL.CARDINAL . Of this sum NLG CARDINAL,CARDINAL.CARDINAL remained unpaid .", "Mr PERSON had to pay his counsel NLG CARDINAL,CARDINAL.CARDINAL for their assistance in the national proceedings . Other expenses included the cost of the banker 's guarantee which served as surety in lieu of detention .", "ORG On DATE and DATE respectively , Mr PERSON and Mr PERSON filed requests to ORG , under section CARDINALa ORG for reimbursement by the ORG of their legal costs and of travel and subsistence expenses incurred in connection with the proceedings ( see paragraph CARDINAL below ) and under LAW for financial compensation for the restrictions on their liberty ( see paragraph CARDINAL below ) .", "ORG On DATE the review chamber of ORG rejected both applicants ' claims under LAW on the ground that there were no reasons in equity to award the applicants compensation .", "The review chamber , which was composed of CARDINAL judges , included QUANTITY ( CARDINAL of them the presiding judge ) who had participated in the appeal hearing ; the third member of the original chamber had in the meantime left the ' s - ORG .", "ORG In decisions of the same date the presiding judge of the review chamber awarded NLG CARDINAL to PERSON and NLG DATE to Mr PERSON by way of reimbursement for travel and subsistence expenses incurred in connection with the hearings of the courts and in respect of the costs of defence witnesses , but rejected the remainder of their claims entirely . These decisions explicitly referred to the decisions of the review chamber mentioned in the previous paragraph , including the reasoning on which they were based .", "ORG Both applicants brought proceedings against ORG before ORG of GPE , PERSON on DATE and PERSON on DATE . Alleging a wrongful act in civil law ( onrechtmatige daad ) , they claimed compensation for the damage caused to them by the detention on remand and full reimbursement of their legal costs . It appears that these proceedings are still pending .", "ORG The relevant provisions of LAW were amended by LAW DATE , Staatsblad ( Official Gazette ) DATE , no . CARDINAL , which entered into force on DATE ( see paragraph CARDINAL below ) .", "Sections CARDINAL and CARDINAL ORG , in so far as relevant , provided :", "\" CARDINAL . ORG If a case ends without the imposition of a punishment or measure , or when such punishment or measure is imposed but on the basis of a fact for which detention on remand is not allowed , the court may , at the request of the former suspect , grant him compensation at the expense of the State for the damage which he has suffered as a result of police custody or detention on remand . Such damage may include non - pecuniary damage .", "...", "ORG The request may only be submitted within DATE following the termination of the case . The petitioner shall be heard , or at least summoned , and may be assisted during the hearing by a lawyer . At the hearing the lawyer shall be offered the opportunity to make any observations required .", "ORG The review chamber shall consist as far as possible of the judges who have dealt with the case at the trial .", "ORG The court competent to grant compensation shall be the court with jurisdiction as to both facts and law ( gerecht in feitelijke aanleg ) before which , at the time of its termination , the case was or would have been prosecuted or else was last prosecuted , or , if that court is a ORG ( kantonrechter ) , ORG of that judicial district . ... \"", "\" CARDINAL . Compensation shall be awarded in each case if and to the extent that the court , taking all circumstances into account , is of the opinion that there are reasons in equity to do so .", "ORG In the determination of the amount , the personal circumstances ( levensomstandigheden ) of the former suspect shall also be taken into account .", "ORG The decision shall be reasoned . The decision shall immediately be notified to the former suspect or to his heirs , but in case of a rejection the grounds shall be omitted . In that case the former suspect or his heirs may consult the statement of grounds at the registry . \"", "It was not possible to file an appeal on points of law against a decision based on these provisions .", "Sections CARDINAL and CARDINALa ORG , in so far as relevant , provided as follows :", "\" CARDINAL . Compensation shall be paid to the former suspect or his heirs at the expense of the ORG for costs borne by the former suspect under or pursuant to the provisions of the LAW on Fees in Criminal Cases ( Wet tarieven in strafzaken ) , in so far as the appropriation of these costs has served the investigation or has become devoid of purpose by the withdrawal of summonses or legal remedies by the public prosecution ( openbaar ministerie ) .", "ORG The amount of compensation shall be determined at the request of the former suspect or his heirs . This request must be submitted within DATE following the termination of the case . The determination shall be made in the court with jurisdiction as to both facts and law before which , at the time of its termination , the case was or would have been prosecuted or else was last prosecuted , by ORG judge or by the presiding judge as the case may be . The presiding judge may appoint CARDINAL of the judges of ORG or ORG who have dealt with the case to do so . ORG judge or ORG [ or ORG ] judge will issue an order of payment ( bevelschrift van tenuitvoerlegging ) for the amount of the compensation .", "Petitioners can be heard . If they so wish they will be heard , or at least summoned . They may be assisted by a lawyer . Section CARDINAL , last paragraph , applies .", "... \"", "\" CARDINAL . ORG If the case ends without imposition of a punishment or measure ... , the former suspect or his heirs shall be granted compensation at the expense of the State for his travel and subsistence expenses incurred for the investigation and the examination of his case , calculated on the basis of the Act on Fees in Criminal Cases .", "ORG If the case ends without imposition of a punishment or measure ... , the former suspect or his heirs may be granted compensation at the expense of the State for the damage which he has actually suffered through loss of time as a result to the preliminary investigation ( gerechtelijk vooronderzoek ) and the examination of his case at the trial , as well as the costs of counsel . This will include compensation for the costs of counsel during police custody and detention on remand . Compensation for such costs may furthermore be granted when a case ends with the imposition of a punishment or measure on the basis of a fact for which detention on remand is not allowed .", "...", "ORG and CARDINAL , subsections CARDINAL to CARDINAL , shall apply by analogy . \"", "ORG LAW , which was adopted in DATE and entered into force in DATE , assumed that matters dealt with therein were to be decided either by the trial court , following a hearing which in principle was public , or by the review chamber following a hearing in camera to which the public had no access . Proceedings before the review chamber were governed by sections CARDINAL to CARDINAL .", "Section CARDINAL CCP , in so far as relevant , provided as follows :", "\" CARDINAL . ORG All cases in which a decision is not required by law to be taken by the trial court at the trial hearing or taken at the trial hearing ex officio shall be dealt with by the review chamber . However all applications , requests and proposals made at the trial shall be examined and decided at the trial .", "DATE . ... \"", "Section CARDINAL CCP , in so far as relevant , provided as follows :", "\" CARDINAL . ORG The accused is entitled to be assisted by counsel at all hearings .", "...", "ORG The counsel or the lawyer will be offered the opportunity to make any observations required at the hearings . \"", "ORG Requests based on sections CARDINAL and following and on sections CARDINAL and CARDINALa were heard by the review chamber . As is indicated in the preceding paragraph , review chamber proceedings were not intended to be public . However , since the Convention is directly applicable in the GPE , taking precedence over domestic law , it was open to petitioners to claim that a request based on CARDINAL of these provisions related to a \" civil right \" for the purposes of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW and that they were therefore entitled to a public hearing . It appears from the case - law of ORG that if the review chamber hearing the request accepted this argument , they were obliged to grant a public hearing . It was also open to the review chamber hearing the request to decide of its own motion that Article CARDINAL para . CARDINAL ( article CARDINAL ) was applicable , with the resultant obligation to hear the request in public unless the petitioner preferred a hearing in camera ( see , inter alia , ORG judgment of DATE , PERSON ( ORG , \" GPE \" ) DATE , no . CARDINAL ) .", "In an appeal on points of law for safeguarding the law ( cassatieberoep in het belang der wet ) against a decision of DATE by the ' s - ORG , ORG ( procureur - generaal ) to ORG addressed the question , which he answered in the negative ( see paragraphs CARDINAL of his statement of grounds of appeal ) , whether a request for compensation based on LAW ORG led to the determination of a \" civil right \" . In its judgment rejecting the appeal ( judgment of DATE , GPE DATE , no . CARDINAL ) ORG expressly declined to rule on this issue .", "The Act of DATE ( see paragraph CARDINAL above ) is intended to ensure the conformity of review chamber proceedings with LAW as the legislature considers that this provision ( article CARDINAL ) is to be interpreted in the light of the ORG 's case - law . The legislature has chosen to retain the general principle that review chamber proceedings are not public but to prescribe public hearings where LAW ) makes that necessary . LAW ORG , in so far as it is relevant , now reads :", "\" CARDINAL . Review chamber proceedings shall not be public unless they are required to be by law .", "DATE . ... \"", "The explanatory memorandum ( GPE ( Parliamentary Documents ) II , DATE , CARDINAL no . CARDINAL , pages CARDINAL and following ) enumerates the review chamber proceedings which , in the view of the Government , are covered by LAW . In this connection , the following passage taken from the explanatory memorandum is of relevance ( page CARDINAL ) :", "\" The actions for obtaining compensation for damage or costs * are of a composite nature ( gemengd van aard ) ( sections CARDINAL , CARDINAL , CARDINAL and CARDINALa ) . The close link between the action and criminal proceedings admittedly justifies placing them in LAW , but what is at stake in the proceedings can be qualified as of a civil - law nature . The applicability of LAW ) is thus established . \" ( * emphasis in the original )", "Accordingly , the third paragraph of CARDINAL now reads :", "\" The request may only be submitted within DATE following the termination of the case . It shall be dealt with by the review chamber in public . \"", "Similarly , the third paragraph of CARDINAL now reads :", "\" The request shall be dealt with by the review chamber in public . \"", "As a further consequence of the fact that LAW ) is now considered applicable to the proceedings brought pursuant to LAW , the third paragraph of section CARDINAL has been amended so as to read :", "\" The decision shall be notified without delay to the former suspect or his heirs . \"", "The explanatory memorandum states the following : \"", "Section CARDINAL requires the decision to be reasoned . It is incompatible with the proposed publicity of the proceedings and of the decision to omit reasoning in a decision rejecting the request . \"", "ORG In its judgment of DATE , GPE DATE , no . CARDINAL , ORG of ORG ruled that section CARDINAL ORG did not prevent the former suspect who considered himself a victim of unlawful detention from bringing proceedings in tort against the ORG and claiming full compensation for any damage suffered . ORG held , inter alia , that", "\" [ LAW ] did not purport to do more than offer the courts the possibility of granting compensation ` for detention that was lawful but nevertheless shown afterwards to be unjustified ' \" .", "Further to that judgment , ORG , in its judgment of DATE , GPE DATE , no . CARDINAL , held , inter alia :", "\" Sections CARDINAL and following ORG offer the former suspect a speedy and inexpensive but , in view of what is laid down in LAW , first and second paragraphs , limited possibility of obtaining compensation for damage suffered on grounds of equity . This procedure therefore does not extend to the determination by the courts of complete compensation for damage on the basis of a tort committed by the State vis - à - vis the ( former ) suspect and therefore does not affect the possibility open to the former suspect of bringing his claim before the civil courts on that basis . Given the limited purport of the procedure established by sections CARDINAL and following , what is laid down in those provisions as regards the procedure to be followed does not inhibit their application even in cases of unlawful detention . \"", "ORG Recently ORG of ORG has confirmed that a former suspect may bring an action before the civil courts only if he or she wishes to claim compensation on the basis of unlawful detention and that otherwise the only remedy available is to bring proceedings under sections CARDINAL and following ORG ( judgment of DATE , PERSON ( Weekly Law Reports , \" RvdW \" ) DATE , no . CARDINAL ) .", "It thus appears from the case - law that former suspects may choose between proceedings before the criminal courts and proceedings before the civil courts . For their claim to be allowed by the civil courts , they must state , and prove , that the detention was unlawful in their regard ; if they are successful , they are entitled to full compensation . For their claim to be accepted by the criminal courts , no more is required than that the case should end without the imposition of a punishment or measure and that the review chamber should consider that reasons in equity exist to award compensation .", "ORG There was formerly some controversy in legal writing as to when deprivation of liberty in connection with criminal proceedings constituted a tort , but this has now been settled by CARDINAL recent judgments of ORG .", "In its judgment of DATE , RvdW DATE , no . ORG , ORG rejected the suggestion that pre - trial detention undergone in connection with a criminal act of which the suspect is afterwards acquitted should invariably be considered to be retrospectively unlawful and that the ORG should therefore be held liable to pay compensation for all damage suffered by the former suspect . ORG held that , on the contrary , only additional circumstances could lead to such a finding . These additional circumstances were referred to in this judgment and further elaborated in ORG above - mentioned judgment of DATE . From this statement of the law it envisages that pre - trial detention can only engage the ORG 's liability in tort , and entitle the former suspect to full compensation , in CARDINAL cases :", "- firstly , if it is established , either by the judgment acquitting the former suspect or on the basis of other evidence contained in the case file of the criminal proceedings , that the suspicion which existed when the pre - trial detention was ordered and which at that time justified the detention had no basis in fact ; or", "-" ]

[]

[]

[]

[ "6" ]

[ "6-1" ]

[]

[ "The applicant was born in DATE and lives in PERSON , LOC .", "He had been receiving a retirement pension since DATE . In DATE he asked a pension authority to up - rate his pension on the basis of the fact that he had worked in hazardous industries . The latter disagreed and the applicant appealed to ORG ( “ ORG ” ) .", "By judgment of DATE ORG chaired by Judge T. ordered the pension authority to up - rate the applicant 's pension starting from DATE . The court based its findings on ORG ( “ LAW ” ) . The judgment was not appealed against and on DATE became final .", "On DATE ORG no . CARDINAL of GPE and GPE Region ( “ ORG ” ) lodged with ORG ( “ ORG ” ) an application for supervisory review of the judgment of DATE . This application was never examined . However , on DATE the President of ORG wrote a letter to the first - instance court which stated as follows :", "“ ORG sends a statement of complaint by the PERSON ORG ORG no . CARDINAL of GPE and GPE Region against the judgment of ORG in the case of PERSON ORG no . CARDINAL of GPE and GPE Region ...", "[ The Town ] Court examined the scope of the pension rights of the plaintiff ...", "[ The principles ] of the examination of the scope of the pension rights ... have been set out in the Ruling of the Plenum of ORG of the Russian Federation no . CARDINAL of DATE ... and the Judgment of ORG of GPE of DATE in the case of ORG v. ORG - Chief ORG no . CARDINAL of GPE and LOC .", "Delivering a judgment ... at variance with the Ruling of the ORG of ORG of the Russian Federation no . CARDINAL of DATE and ORG of GPE of DATE discloses a judicial error , such judgment can not be regarded lawful . With the purpose of securing consistency in the case - law ... the statement of complaint by the ORG ORG ORG no . CARDINAL of GPE and GPE Region ... against the above said judgment in the case of PERSON ORG no . CARDINAL of GPE and GPE Region is being sent for reconsideration on the ground of newly discovered circumstances . ”", "On DATE ORG lodged with ORG an application for quashing of the judgment of DATE and re - opening of the applicant 's case on the ground of newly discovered circumstances . It stated that ORG judgment of DATE in the PERSON case , which gave a different interpretation of LAW , had been a circumstance warranting the re - opening of the Khrykin case . The applicant argued that the application had been introduced outside the DATE time - limit .", "By decision ( определение ) of DATE , ORG presided over by the same judge who examined the applicant 's case in DATE granted the application . It held as follows :", "“ [ T]he method of the assessment of pension rights ... has been set out in paragraph CARDINAL of the Ruling of the Plenum of ORG of the Russian Federation no . CARDINAL of DATE ... and in the Judgment of ORG of GPE CARDINAL in the case of GPE v. ORG - Chief ORG no . CARDINAL of GPE and LOC ...", "...", "[ T]he court finds that reconsideration of such a judgment [ as in the applicant 's case ] can be done by way of additional proceedings on the ground of newly discovered circumstances ... which allow to remedy a judicial error ... that resulted in a violation of the rights of the defendant [ the Pension Fund ] ...", "[ T]he arguments by the applicant and his representative that the reconsideration ... of the judgment of DATE is impossible and that the time - limit for lodging such a request was missed are to be dismissed on the ground that the Judgment of ORG ... , which entails legal consequences , was rendered on DATE and became known [ to ORG ] in DATE . The defendant had applied , to the competent judicial authorities , for reconsideration of the judgment [ of DATE ] on DATE , that is to say before the DATE time - limit ... expired .", "In the light of the foregoing ... the court", "DECIDED :", "The judgment of DATE ... is to be quashed .", "The re - examination of the merits of the dispute is to be scheduled on DATE at TIME ”", "By judgment ( решение ) of DATE , ORG held that the applicant 's claim for a higher pension was to be dismissed in full . Its findings were based on ORG and the Ruling of the Plenum of the Supreme Court no . CARDINAL of DATE . On DATE , ORG upheld the first - instance court 's judgment on appeal .", "The LAW of the Russian Federation provides :", "Article CARDINAL", "“ CARDINAL . In the administration of justice , judges shall be independent and subject only to the LAW of GPE and the federal law ... ”", "Article CARDINAL", "“ ... CARDINAL . A judge can not be transferred , suspended or removed from office unless it is provided for by the federal law . ”", "The Code of Civil Procedure provides :", "Article CARDINAL . GPE of judges", "“ ... CARDINAL . Judges shall examine civil disputes in the conditions that exclude outside influence . Any interference with the exercise of their judicial powers shall be forbidden and shall be punishable under the law ... ”", "Law of DATE “ On ORG in the NORP Federation ” provides that the independence of a judge is to be secured , in particular by the prohibition of interference with the administration of justice , the manner of their appointment and termination of their office , judges ' inviolability and by the system of judicial self - government ( Section CARDINAL ) . A judge is not obliged to give any comments on a decided , or a pending , case ( LAW ) .", "Law “ On ORG in the NORP Federation ” provides :", "Section CARDINAL.CARDINAL Judges ' liability for disciplinary offences", "“ CARDINAL . A judge who has committed a disciplinary offence ( a breach of this PERSON and of LAW to be adopted by ORG ) may , with the exception of the judges of ORG of GPE , receive a disciplinary penalty in the form of :", "– a warning ; [ or ]", "– early termination of judicial office .", "The decision to impose a disciplinary penalty must be taken by the judicial qualification board that has competence to examine the question of termination of office of a particular judge at the time of that decision ... ”", "Law of DATE “ On Bodies of the ORG ” provides that a body which is empowered to impose a disciplinary penalty on judges ( including presidents of district courts ) are , in particular , regional judicial qualification boards ( Section CARDINAL § CARDINAL ( CARDINAL ) ) . An application for holding a judge liable for having committed a disciplinary offence can be lodged by the president of the relevant court or the president of a higher court ( LAW § CARDINAL ) .", "The Constitutional Court of GPE in its Ruling PERSON of DATE held that the power of the presidents of the relevant , or higher , courts to apply for holding a judge liable , as well as the powers of the presidents to examine complaints against judges and to participate in hearings of judicial qualification boards and to make their submissions , were not incompatible with the LAW of GPE .", "The Code of Civil Procedure provides :", "Article CARDINAL . Right to apply to a court exercising supervisory review", "“ CARDINAL . Judicial decisions that have become legally binding , with the exception for judicial decisions by the ORG of ORG of GPE , may be appealed against ... to a court exercising supervisory review , by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions .", "Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... ”", "Article CARDINAL - CARDINAL . Actions of the supervisory review court after an application for supervisory review is submitted", "“ An application for supervisory review proceedings shall be examined :", "( CARDINAL ) by the President of the Court , or [ his / her ] Deputy , or , at their request , by a judge of this court ... ”", "Article CARDINAL . Examination of an application for supervisory review", "“ CARDINAL . Having examined an application for supervisory review , the judge issues a decision on –", "( CARDINAL ) NORP refusal to remit the application for examination on merits by a supervisory court in a court hearing if the grounds for [ quashing or altering judicial decisions ] do not exist ...", "( CARDINAL ) . remitting the application for examination on merits by a supervisory court in a court hearing ... ”", "Article CARDINAL . FAC for quashing or altering judicial decisions by way of supervisory review", "“ Judicial decisions [ of lower courts ] may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions . ”", "LAW Competence of the supervisory - review court", "“ CARDINAL . Having examined the case by way of supervisory review , the court may ...", "( CARDINAL ) quash the judicial decision issued by a court of first , second or supervisory - review instance in whole or in part and remit the matter for a fresh examination ; ...", "( CARDINAL ) quash or alter the judicial decision issued by a court of first , second or supervisory - review instance and issue a new judicial decision , without remitting the matter for a fresh examination , if substantive legal provisions have been erroneously applied or interpreted . ”", "The Code of Civil Procedure provides :", "“ CARDINAL . [ Judgments ] which have become final may be re - considered on the basis of newly discovered circumstances .", "The grounds for reconsideration ... shall be :", "CARDINAL ) NORP significant circumstances which were not and could not have been known to the party who applies for reconsideration ; ... ”", "“ ... [ An application for reconsideration of a [ judgment ] due to the discovery of new circumstances ] shall be lodged within DATE after the discovery of the circumstances . ”", "“ The time - limit for lodging an application for reconsideration of a [ judgment ] due to the discovery of new circumstances shall be calculated from DATE of the discovery of such circumstances ... ”", "“ CARDINAL . Following the examination of an application for reconsideration of a [ judgment ] due to the discovery of new circumstances , the court may either grant the application and quash the [ judgment ] , or dismiss the application .", "NORP The court decision by which an application for reconsideration of a [ judgment ] due to the discovery of new circumstances is granted shall not be subject to appeal .", "Provided that a [ judgment ] is quashed , the case shall be examined in accordance with the rules of this LAW . ”", "By a judgment of DATE , ORG upheld the decision of the judicial qualification board of GPE to terminate office of judge PERSON for a breach of the procedural law . She argued that her actions had not constituted a disciplinary offence but to no avail .", "PERSON had been a president of a district court .", "By a judgment of DATE , ORG upheld the decision of the judicial qualification board of GPE to terminate office of judge PERSON for a “ blatantly erroneous breach of the procedural law ” . The Judge S. 's arguments that it had been an erroneous interpretation of the legislation rather than “ an intentional breach of law ” were dismissed .", "PERSON had been Justice of ORG . The proceedings before the judicial qualification board had been brought by the president of the town court .", "By a judgment of DATE , ORG upheld the decision of a regional judicial qualification board to terminate office of judge PERSON for “ blatant and repeated breaches of the procedural law ” . Judge S. ' unsuccessfully argued that she had misinterpreted the law and that she could not be held liable given that her judicial decisions had not been quashed by a higher court and had become final .", "Ms Z. had been a judge of a district court . The proceedings before the judicial qualification board had been brought by the president of the town court ." ]

[ "6" ]

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[ "The applicant was born in DATE and lives in FAC .", "On DATE the ORG ordered the applicant 's pre - trial detention for a period of DATE . The court referred to the reasonable suspicion that the applicant was guilty of fraud while acting in an organised group .", "On DATE the applicant was arrested . On DATE the ORG ordered his detention for DATE . The court held that there was a reasonable suspicion that the applicant had committed the offences with which he had been charged ( including establishing and leading an organised criminal group ) . Furthermore , he had confessed to the charges . The court also stressed that the detention was necessary in order to ensure the proper course of the proceedings , in particular as the applicant had been in hiding .", "NORP In DATE his detention was extended until DATE . The court repeated the reasons previously given .", "On DATE and DATE the applicant 's wife , PERSON , asked for permission to visit her husband in prison . On DATE and DATE respectively , ORG refused her requests . The prosecutor made handwritten notes on ORG applications – “ no permission ” and “ permission refused ” respectively ( “ brak zgody ” , “ nie wyrażam zgody ” ) .", "On DATE the applicant was again refused permission to be visited by his wife and children by GPE . The prosecutor made a handwritten note on the applicant 's motion “ permission refused ” ( “ nie wyrażam zgody ” ) .", "On DATE the applicant was visited by his daughter .", "On DATE the ORG extended the applicant 's detention until DATE . The court held that the original reasons for his detention were still valid . The court also referred to the likelihood of a heavy sentence and the fact that the applicant had acted in a criminal group . The court further refused the applicant 's request for release .", "On DATE the ORG refused the applicant 's application for release and the replacement of detention by more lenient preventive measures . The court referred to the grounds given in previous decisions .", "The trial began on DATE . There were QUANTITY other coaccused in the proceedings . The prosecutor asked the court to hear CARDINAL witnesses .", "At the hearing held on CARDINAL DATE the applicant again asked for the preventive measure to be changed . The court refused his request and extended the detention until DATE .", "DATE and DATE the applicant was visited by his wife on CARDINAL occasions .", "The applicant 's detention was subsequently extended on several occasions , in particular on DATE and CARDINAL DATE .", "On DATE the applicant was released from detention .", "It would appear that the proceedings are pending .", "The relevant domestic law and practice concerning the imposition of pre - trial detention ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and the rules governing other “ preventive measures ” ( środki zapobiegawcze ) are set out in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .", "Article CARDINAL § CARDINAL of LAW DATE , as applicable at the material time , provided as follows :", "“ A detainee is allowed to receive visitors , provided that he obtains permission from the authority at whose disposal he remains [ investigating prosecutor at the investigative stage or from the trial court once the trial has begun ] . If the detainee remains at the disposal of several authorities , it is necessary to obtain permission from all of them unless they decide otherwise . ”", "The judgment was given following a constitutional complaint lodged by the ORG , alleging that LAW had been incompatible with a number of constitutional provisions , including the principle of protection of private and family life ( LAW ) , the principle of proportionality ( LAW ) , LAW ORG and LAW . ORG judgment became effective on DATE , on the date of its publication in ORG ) .", "The Constitutional Court ruled that LAW , in so far as it did not specify the reasons for refusal of family visits in pre - trial detention , was incompatible with the above provisions . The court held that this provision did not indicate with sufficient clarity the limitations on a detainee 's constitutional right to protection of private and family life . The court also considered that LAW was incompatible with LAW in so far as it did not provide for a possibility to appeal against the prosecutor 's decision to refuse a family visit in pre - trial detention .", "On DATE the parliament adopted amendments to Article CARDINAL of LAW . In particular , subparagraphs CARDINALa-CARDINALf were added . These provisions provide in particular that a detainee is entitled to CARDINAL family visit per month . In addition , they indicate clearly the conditions for refusing a family visit to a detainee and provide an appeal procedure against such a refusal . The amendments enter into force on DATE .", "The relevant extracts from the Recommendation read as follows :", "“ Part II Conditions of imprisonment", "Contact with the outside world", "CARDINAL Prisoners shall be allowed to communicate as often as possible by letter , telephone or other forms of communication with their families , other persons and representatives of outside organisations and to receive visits from these persons .", "CARDINAL ORG and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations , maintenance of good order , safety and security , prevention of criminal offences and protection of victims of crime , but such restrictions , including specific restrictions ordered by a judicial authority , shall nevertheless allow an acceptable minimum level of contact .", "CARDINAL ORG law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted .", "CARDINAL NORP The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible .", "CARDINAL.CARDINAL ORG authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so . ”" ]

[ "8" ]

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[ "NORP The applicant , NN cel PERSON alias Nn.pCARDINAL.v.CARDINAL.CARDINAL , yclept PERSON , claims to be a GPE national . She gives an address in GPE . She states her profession as “ student ” . Her date of birth is given on the application form as “ DATE ( as stated by the respondent ) ” .", "NORP The applicant was represented before the Court by Mr J. Hemelaar , a lawyer practising in GPE .", "NORP , may be summarised as follows .", "On DATE , the applicant was arrested on suspicion of having committed criminal offences . Because she refused to identify herself , the applicant was , pursuant to article CARDINALa of LAW PERSON ) , detained in order for her identity to be established . She was registered as “ NN cel PERSON ” .", "On DATE she was released and handed over to the NORP police ( vreemdelingenpolitie ) who held her ( ophouding ) , pursuant to article LAW and CARDINAL of LAW DATE ( Vreemdelingenwet CARDINAL ) , for similar purposes .", "The applicant , through her counsel PERSON , wrote to the police officer responsible arguing that the applicant was being wrongly held . Appended to the letter were a number of statements of fellow suspects , all of whom claimed to know that the applicant had GPE nationality . All mentioned the fact that she had had to prove her identity to be admitted to higher education or employment . CARDINAL , going by the name of “ ORG ” , claimed to have seen the applicant ’s passport . Another , called “ PERSON ” in the document , claimed to have seen her driving license . All fellow suspects stated that they had given copies of identity documents to PERSON , whom however they had instructed not to circulate them any further .", "After the initial holding measure had been extended for TIME , the applicant was placed in GPE detention with a view to her expulsion ( vreemdelingenbewaring ) . In the course of an interview with the NORP police on DATE , she stated among other things that she had GPE nationality by birth , held a GPE passport and was “ presumably ” entered in the population register .", "DATE the applicant appealed against her deprivation of liberty with ORG of The Hague . For the purpose of these proceedings , she was registered as “ Nn.pCARDINAL.v.CARDINAL.CARDINAL ” , date of birth CARDINAL DATE , GPE nationality . In the statement of grounds of appeal submitted by her counsel it was claimed that she was “ a normal NORP young lady ” ( een normale ORG jonge dame ) and still a minor .", "On DATE the applicant lodged a request with the Provisional Measures Judge ( voorzieningenrechter ) for the suspension of her NORP detention . In her written statement she claimed to be of age and to have a job .", "Also on DATE the applicant was released .", "In the further course of the proceedings of ORG , the applicant admitted to the first name GPE . Eventually her appeal was rejected by ORG ( rechtbank ) of GPE , sitting in GPE , by decision of DATE .", "NORP The applicant lodged a further appeal with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) , this time under the name PERSON .", "On DATE , ORG dismissed the applicant ’s further appeal on summary reasoning .", "On DATE , the ORG put the following questions to the Agent of the Government :", "“ CARDINAL . In relation to LAW ( a ) of the Convention :", "a. Is the person who lodged the above application as PERSON , the same person who was apprehended ( aangehouden ) , questioned and subsequently put in GPE detention on or DATE ?", "NORP If so , and in relation to the alleged facts :", "a. At what point in time was the applicant apprehended ?", "b. For how long was the applicant held for questioning ( ophouden voor verhoor ) ?", "c. Following her apprehension , did the applicant provide any information as to her identity ?", "d. If not , was it easily possible for her identity to be established in another way at that time ?", "e. If her identity could not be established , was the applicant ’s apprehension prolonged pursuant to LAW ) ?", "PERSON What measures were taken at that time in order to establish the applicant ’s identity ?", "g. Did the applicant provide any information as to her nationality and , if so , in what way has she co - operated in establishing that nationality ?", "h. On what grounds was it concluded that the applicant fell under the provisions of LAW ( Vreemdelingenwet ) ?", "i. Did the applicant , at the time she was placed in GPE detention or subsequently , provide further information allowing her identity or nationality to be established and , if so , how ?", "PERSON When was the applicant taken into GPE detention and when was she released ?", "k. Did the GPE detention come to an end as a result of the applicant herself demonstrating at any time that the provisions of LAW at issue could not be applicable to her ?", "l. At what point in time and in which manner did the applicant ’s identity become clear ? ”", "On DATE the Agent of the Government replied as follows :", "“ ( ... ) The Government will DATE out of necessity – limit itself to a short reply , since it can not confirm that the applicant is the person who was apprehended , questioned and subsequently put in GPE detention on or DATE . A female person was indeed apprehended , questioned and put in GPE detention on DATE , but she was merely known as ‘ NN cel PERSON and ‘ PERSON . Her fingerprints led to a positive identification , but the matching fingerprints were registered under ‘ NN onbekend’ ( NN unknown ) , reference number CARDINAL . The latter were taken from a female apprehended in the course of a house - squat in the city of GPE on DATE , whose identity remained unknown .", "For the sake of completeness , I should add that the person apprehended on or around DATE appealed against the measure of aliens detention under the details mentioned above . Her representative informed the District [ i.e. Regional ] Court that she was also known as ‘ Tjitske’ . On DATE , higher appeal against ORG judgment was lodged by ‘ Tjitske Drijfhout , alias NN cel PERSON alias Nn . PCARDINAL.v.CARDINAL.CARDINAL’ .", "Upon receipt of your letter , the GPE police in GPE checked the information provided in the application . It appears that Tjitske Drijfhout , born in GPE on DATE and residing at GPE CARDINAL hs , PERSON , GPE , is unknown in the municipal database . There is , however , a person known as PERSON , born on DATE . The above mentioned appeal to ORG was lodged by a person claiming to be of minor age . The age of the apprehended person was estimated DATE . Under no circumstance could the apprehended person have reached DATE , let alone DATE nearly ) CARDINAL - and - ten . Furthermore , the postal code of CARDINAL JB does not relate to the address provided .", "The Government is of the opinion that – since at least part of the personal data submitted by the applicant are proven to be false – there is no reason to assume that the name provided by the applicant would be correct . The applicant ’s identity has therefore not been disclosed , as a result of which the application should be declared inadmissible for being anonymous , as stipulated in LAW ) of the Convention . The Government refers to the ORG ’s decision to that effect in the case of PERSON v. the GPE ( ORG . No . CARDINAL/CARDINAL ) . The fact that – other than the applicant in that case – the applicant in the present case has chosen to provide a somewhat less obvious pseudonym , does not alter that conclusion . ”", "A copy of this letter was transmitted to the applicant ’s representative for comment . In a letter dated DATE , the latter admitted that CARDINAL DATE was not the applicant ’s date of birth but did not give any other date . He claimed that the wrong postcode , which differed only slightly from the actual postcode of the address given , was an honest mistake . He further admitted that the person referred to as NN cel PERSON and ORG in the domestic proceedings was the applicant .", "On DATE Court requested the applicant to establish her identity by submitting a copy of a valid identity document held by her .", "By letter dated DATE the applicant ’s representative , Mr Hemelaar , replied as follows ( translation ) :", "“ In the above - mentioned case you requested me , in your letter of DATE , for a copy of a valid identity document of the applicant .", "I have been informed by the applicant that she can not comply with that request , because she does not now hold a valid identity document from which her name as stated appears ( omdat zij thans niet beschikt over een geldig identiteitsbewijs waaruit haar naam als opgegeven blijkt ) .", "In the GPE there is no obligation to have an identity document . People can go through life without an identity document . Especially since the law has been changed and fingerprints are required , there is much resistance against applying for a passport in the circles in which the applicant moves . The situation of being ‘ identity document - less’ ( identiteitsdocumentloos ) now occurs more frequently in those circles than it used to .", "On behalf of the applicant , I point out that if the mere fact that the ORG denies the stated identity were enough to impose a duty of proof on the applicant , the effective exercise of the right of petition [ would be ] undermined . As you will be aware , especially in cases of GPE detention identity documents are usually unavailable . If now the ORG takes the position that the stated identity is incorrect ( as in fact GPE does in a large number of cases , often on the fallacious reasoning that ‘ The stated identity can not be correct , because if it were correct , the authorities of the country of origin would issue / have issued a laissez - ORG ) , then no applications at all could be lodged against violations of human rights in cases of GPE detention .", "In certain cases a GPE citizen may in fact be asked for an identity document in specific situations and the failure to produce one may attract penal sanctions ( such as a MONEY fine or an extension of detention on remand ) and such sanctions were in fact imposed on the applicant . But a general obligation to purchase a passport or identity card , or possess one , does not exist in the GPE .", "My client takes the view that she has not submitted an anonymous complaint and also refers to the decision of ORG , the highest administrative court in the GPE , from which it appears that ORG did not base its decision on that fiction either . My client has stated a name and an address ( albeit with the wrong postcode ) . That ought to be sufficient . Unlike in the case of ‘ Blondje’ ORG has considered this sufficient . It appears incorrect to the applicant that the ORG should all of a sudden adopt a different position in the present case . ”" ]

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[ "NORP The applicant company was incorporated as a limited liability company on DATE by decision of ORG , GPE . The second applicant was born in DATE and lives in GPE .", "On DATE , the second applicant , in his capacity as founder and director of the construction company “ ORG , the applicant company , signed a building repair contract with a ORG school . The contract provided for the transfer of CARDINAL NORP Laris ( “ GEL ” , ORG CARDINAL,CARDINAL.CARDINAL ) from the budget of ORG onto the account of the applicant company . In exchange , the applicant company would perform repairs to the school .", "Despite the fact that , by DATE , the applicant company had already done some of the repairs , equivalent to CARDINAL GEL ( ORG CARDINAL,CARDINAL)CARDINAL ORG only transferred CARDINAL GEL ( EUR CARDINAL,CARDINAL)CARDINAL to the company 's account .", "The tax authorities initiated proceedings against the applicant company and the second applicant personally , demanding taxes in the amount of CARDINAL GEL ( EUR CARDINAL,CARDINAL)CARDINAL . According to the applicants ' submissions , the tax claim was based on the total payment due for the work performed under the contract of DATE , whilst , in reality , the applicant company only received partial payment .", "On DATE , the ORG partially upheld the claim of the tax authorities . While dismissing the tax claim of CARDINAL GEL ( ORG CARDINAL,CARDINAL)CARDINAL towards the applicant company as being unsubstantiated , ORG , in view of the second applicant 's recognition of his company 's indebtedness before the ORG budget as of DATE ( well before the signing of the contract with ORG ) , ordered the second applicant personally to pay the VAT debt of CARDINAL GEL ( ORG CARDINAL,CARDINAL)CARDINAL .", "As the remaining sum for the work performed under the contract of DATE was not paid by ORG and the tax debt of the second applicant was outstanding , according to the applicants ' submissions , the applicant company could hardly continue its economic activity .", "The applicant company , represented by the second applicant , brought proceedings against ORG claiming the remaining CARDINAL GEL ( EUR CARDINAL,CARDINAL)CARDINAL for the performed work , as well as the second applicant 's tax debt of CARDINAL GEL ( ORG CARDINAL,CARDINAL)CARDINAL , given the ORG 's failure to meet its contractual obligations . By a judgment of DATE , the ORG granted the applicant company 's claims in full .", "There was no appeal against the judgment of DATE , which therefore acquired binding force on DATE . Based on that judgment , on DATE , ORG issued an order obliging ORG to pay the applicant company CARDINAL GEL ( EUR CARDINAL ) . However , the order remained unexecuted .", "On DATE , the second applicant , acting again on behalf of the applicant company , requested ORG of ORG to comply with the judgment of DATE . In response , on CARDINAL DATE , the Head of the ORG explained that the enforcement of judgments against the ORG budget institutions still remained CARDINAL of the most difficult tasks to accomplish for ORG . No information was provided as to when exactly enforcement could be expected .", "On DATE , the second applicant again addressed ORG . This time he appealed directly to the Minister of Justice , demanding the immediate implementation of the decision . This demand went unanswered .", "On DATE , DATE , the second applicant applied to ORG , requesting the initiation of criminal proceedings for the non - implementation of a binding judicial decision , as laid down in LAW . However , his request was dismissed on DATE ; ORG did not find any intentional wrongdoing on the part of the authorities – ORG , ORG and ORG – commenting that the delay had an objective reason , namely the lack of finances in the ORG budget . Therefore nobody could be held criminally liable .", "On DATE , by the Notification No . CARDINAL the ORG authorities imposed upon the applicant company the fine of CARDINAL GEL ( EUR CARDINAL,CARDINAL)CARDINAL as an accrued penalty for the second applicant 's outstanding tax debt of CARDINAL GEL ( EUR CARDINAL . However , following the applicant company 's judicial dispute , ORG declared the notification null and void . This decision was upheld by ORG on DATE ; along with annulment of the notification , the court instructed the tax authorities to adopt a new administrative act after comprehensive re - examination and reassessment of the facts .", "On DATE , the ORG regional tax authorities issued a new notification imposing on the applicant company a fine of CARDINAL GEL ( EUR CARDINAL,CARDINAL.CARDINAL)CARDINAL for the same VAT debt of the second applicant . This notification was never challenged by the applicants and is still in force .", "The tax debt of the second applicant constitutes , at the same time , part of the judgment debt of DATE , which still has not been paid by the ORG , DATE .", "On DATE , the Government adopted an Ordinance introducing a mechanism for the gradual payment of outstanding debts ( see paragraph CARDINAL below ) .", "“ Damage shall be compensated not only in respect of actual financial loss , but also in respect of loss of income . Loss of income is that which could have been obtained had contractual obligations been fulfilled properly . ”", "“ Damages shall be paid only when the harm could have been foreseen by the party in default and there exists a causal link between the harmful action and the result . ”", "“ ... following satisfaction of a private suit against administrative authorities , the court shall declare unlawful the administrative action or decision which infringed the litigant 's rights , and order relevant measures [ to restore the litigant in his rights ] . ”", "“ Enforcement Agents working at ORG [ of ORG ] are responsible for the execution of the decisions foreseen in this law ” .", "“ An Enforcement Agent 's requests relating to his professional activities are equally binding on any natural or legal person irrespective of their hierarchical or juridical - organisational status .", "In case of a delay in execution , partial execution or any other circumstances that impede proper execution , the Enforcement Agent shall apply to ORG of ORG for a solution . Any disagreement with the resolution reached by ORG in this respect should be clarified by a court . ”", "“ ... DATE after the proposal to comply voluntarily with a judicial decision obliging budget - funded organisations to disburse money , forcible measures may be undertaken against them ... ”", "The PERSON does not specify either the kind of forcible enforcement measures which may be taken or the remedies that a litigant may pursue if no such measures are undertaken by ORG .", "According to LAW , the non - execution of a judicial decision constitutes an offence :", "“ The non - execution of a binding judicial decision or other judicial decision , or the obstruction to its execution by the ORG , government or local - government officials , or by the executives of a corporation or other organisations [ shall be punished ] ... ”", "“ ... [ In a limited liability company ] ... directors represent the company in relationship to third parties ... ”", "General Administrative Code", "“ Administrative - legal act that has been declared null and void quashes legal effects deriving from its entry into force . ”", "By adopting this LAW , the Government introduced a mechanism for the gradual payment of outstanding debts . Following its paragraph CARDINAL , ORG was ordered to give priority to the enforcement of court decisions concerning ( i ) the payment of compensation for damages caused by injury or death ; ( ii ) the payment of not DATE salary to workers ; ( iii ) the payment of compensation to rehabilitated people . At the same time , ORG was instructed to ensure the proportionate payment of other creditors , but only after the enforcement of the above - mentioned decisions .", "Following paragraph CARDINAL of the GPE , the debtor ORG budget organisations and institutions , in agreement with ORG , have either to secure friendly settlements with their creditors , or to allocate , in accordance with NORP legislation , the enforcement of judgments in time , since , due to the scarcity of funds , the simultaneous payment of judgment debts is not feasible ." ]

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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 their Agent , Mr PERSON .", "On DATE the applicant , PERSON PERSON ( her husband ) and CARDINAL children ( PERSON NORP born in DATE and ORG born in DATE ) moved into a ORG - owned flat in GPE , GPE , under a specially protected tenancy agreement . On DATE the applicant divorced Mr O.V. According to the applicant , since their divorce she and Mr ORG have made continuous , but unsuccessful , efforts to exchange the flat for CARDINAL smaller ones .", "In DATE the applicant resigned from her job in the GPE port and sent her children to school in GPE , GPE , where they acquired temporary registration at the flat of some people she knew for the period of their studies . In DATE the elder daughter , ORG , entered university in GPE and subsequently moved to a dormitory .", "On an unspecified date in DATE Mr GPE instituted civil proceedings against the applicant and the children , seeking termination of their tenancy . He alleged that the CARDINAL of them had established a new home at an unknown address in GPE , where the applicant had met another man , visited the GPE flat only on occasion for leisure purposes and were no longer interested in occupying it on a permanent basis .", "On DATE the applicant was served with a summons at her GPE address , but it was returned undelivered .", "On DATE the ORG heard the case in the applicant ’s absence and allowed Mr ORG claim . This judgment was not appealed against and became final .", "On DATE Mr PERSON registered the applicant and the children from the flat and on CARDINAL DATE privatised it in his name .", "On DATE he sold the flat to the B. family .", "According to the applicant , she learned about the judgment and the subsequent transactions concerning the flat in DATE , when the B. family moved in and changed the locks .", "On DATE the applicant solicited signatures from CARDINAL residents of her building and the neighbouring one , attesting to the fact that she had resided in the flat and left it only on occasion .", "Some time before DATE the case file was lost and subsequently restored by DATE .", "On DATE the applicant alleged before ORG that the judgment of DATE was unfair , in particular , as she had not been accorded an opportunity to participate in the proceedings .", "On an unspecified date the applicant requested ORG of GPE to lodge an application for supervisory review ( protest ) against this judgment . On DATE a protest was lodged and on DATE the ORG of ORG of the GPE quashed the judgment , referring , in particular , to the insufficiency of evidence to the effect that the applicant had been duly notified of the court proceedings . The case was referred back for fresh consideration .", "On DATE the applicant and her daughter ORG , who had reached the age of majority , lodged a counter - claim , seeking to annul the privatisation of the flat and the subsequent contract of sale . The applicant maintained that she had lived in the flat on a permanent basis . In support of her allegation , she provided copies of certificates of her dental treatment in GPE in DATE and her temporary employment with “ N. ” , a private company , DATE and DATE .", "On DATE ORG allowed PERSON claim and dismissed the counter - claims . It found that the applicant had failed to show that after DATE she and her children had used the apartment as a permanent residence . The court acknowledged that they might have visited it on occasion , but found this fact insufficient to justify their interest in retaining the specially protected tenancy . In its reasoning the court referred , in particular , to the testimonies of QUANTITY neighbours , given at the hearing , according to which the applicant and the children were around occasionally ; depositions by CARDINAL other neighbours , given to a local constable , providing analogous information ; absence of any evidence that the applicant had been receiving correspondence at her GPE address in the period in question ; absence of any records in the municipal health - care facility concerning the applicant ’s children in DATE ; and absence of any evidence that the applicant had paid utility and other charges related to the apartment in the period in question .", "The applicant and ORG appealed . They challenged the witness statements as unreliable and inconsistent and referred to the court ’s failure to question the QUANTITY neighbours , who had certified in DATE that the applicant and the children had regularly resided in the flat . They further noted that their belongings had remained in the flat until PERSON ORG had moved them into a garage prior to the sale . They also noted that no evidence had been presented to the effect that they had established a permanent residence in GPE or elsewhere . In addition , in DATE and DATE the applicant and PERSON , respectively , had obtained NORP passports , being registered as the flat residents , which demonstrated their continuous interest in residing in GPE . As regards the payment of the charges , they maintained that the applicant had been unable to pay them , as she had been destitute , receiving no child support from Mr GPE and taking odd jobs .", "Mr PERSON filed an objection against this appeal , alleging that he had provided financial support to the children until their departure for GPE and , had the applicant been in a destitute situation , she could have sought child support from him through court proceedings . Neither had she presented any documents to prove that she had any employment in GPE . Moreover , she could not have been employed , as she had even failed to obtain a tax identification number , necessary for employment according to legislation which had been implemented at the material time . He further alleged that the applicant had moved to GPE because she had met a new “ father ” for the children and had attempted to manage without having any contact with him ( Mr GPE ) , except on her occasional visits . Her conduct had hindered his ability to exchange the flat , notwithstanding his considerable efforts , certified by relevant documents . Therefore , unable to pay the charges , which were calculated on an assumption that CARDINAL persons lived in the flat , Mr GPE had to de - register his former family members from the flat and sell it . As regards the CARDINAL neighbours who had allegedly supported the applicant ’s position , PERSON PERSON noted that she had been given leave to bring them to court , but had failed to secure their appearance . He also mentioned that they were not immediate neighbours and could not in open court stand by their earlier statements , which had , in his opinion , been given by them under pressure from the applicant .", "A representative of the PERSON family also filed an objection , noting , in particular , that if the applicant had lived in the flat on a permanent basis , as she had submitted , she would not have learned about its privatisation and sale with such a delay . Moreover , the certificate of her employment in GPE in DATE had been issued by a fake company and was not in accordance with the law .", "On DATE ORG of the LOC upheld the previous judgment , referring , in particular , to the fact that the applicant had failed to secure the appearance of her witnesses and that there was no reason to consider that the PERSON family had acquired the flat in bad faith .", "On DATE ORG rejected the applicant ’s request for leave to appeal in cassation .", "The relevant provisions of the LAW read as follows :", "“ Everyone has the right to housing . The ORG creates conditions that enable every citizen to build , purchase as property , or to rent housing .", "ORG in need of social protection are provided with housing by the ORG and bodies of local self - government , free of charge or at a price affordable for them , in accordance with the law .", "No one shall be forcibly deprived of housing other than on the basis of the law pursuant to a court decision ” .", "The relevant provisions of LAW read as follows :", "“ ORG shall have a right to obtain residential LOC from the ORG or public housing stock for use during an indefinite period according to the established procedure ... [ “ the specially protected tenancy ” ] .", "Citizens shall have a right to privatisation of flats ( houses ) from the ORG housing stock ....", "Nobody may be evicted from occupied residential LOC or restricted in their right of occupancy of occupied residential LOC except on the grounds and according to the procedure established by law ... ”", "“ In the event of the temporary absence of a tenant or members of his family , residential premises shall be retained for them for DATE .", "In the event that a tenant or members of his family have been absent on serious grounds for a period exceeding six months , the said term may be prolonged by a landlord upon the application of the absent [ occupant ] and , in the event of a dispute , by a court ... ”", "“ A declaration that a person has lost the right of occupancy of residential LOC , as a consequence of the absence of that person in excess of established time - limits , shall be made through court proceedings ” ." ]

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[ "NORP The applicant , PERSON , is a GPE national who was born in DATE and lives in GPE . She was represented before the ORG by Mr J. van Broekhuijze , a lawyer practising in PERSON . The respondent Government were represented by their Deputy Agent , Ms L. GPE , of ORG .", "NORP On DATE the public prosecutor ( officier van justitie ) submitted a request to ORG ( rechtbank ) of GPE for a provisional court authorisation ( voorlopige machtiging : hereafter “ provisional order ” ) to have the applicant committed to a psychiatric hospital pursuant to ORG ( Wet bijzondere opnemingen in psychiatrische ziekenhuizen ; “ the LAW ” ) . The prosecutor ’s request was based on a medical report issued by a psychiatrist who was not involved in the treatment of the applicant .", "On DATE ORG held a hearing in the presence of the applicant , her counsel , CARDINAL social - psychiatric nurses , a priest and a sister of the applicant . ORG heard the applicant ’s general practitioner and the applicant ’s own psychiatrist .", "It adjourned the proceedings in order to enable the prosecutor to request authorisation for the applicant to be committed to a psychiatric hospital for observation ( observatiemachtiging ; hereafter “ observation order ” ) instead ( section DATE of the LAW , see below ) .", "On DATE the public prosecutor lodged a request for an observation order with ORG . The request was accompanied by a new medical report dated DATE .", "On DATE ORG rejected the request for the provisional order and instead issued an observation order valid until DATE . In respect of the latter , it held as follows :", "“ From the medical report and the clarification provided during the hearing by the physician treating the person concerned it appears that the situation is as follows :", "The person concerned is suffering from a paranoid delusional disorder within the framework of schizophrenia .", "There are serious reasons for believing that a disturbance of the mental faculties of the person concerned will lead her to pose the following danger to herself :", "The person concerned is , probably as a result of her paranoid delusion , very suspicious of her neighbours . The person concerned is said to cause noise disturbance at TIME . There is a danger that , through her bothersome behaviour , the person concerned will provoke aggression of others against herself .", "The committal to and stay in a psychiatric hospital of the person concerned is intended for examination whether she is suffering from a disturbance of the mental faculties and whether that disturbance will lead her to pose a danger to herself .", "The danger can not be averted through the intervention of persons or institutions outside a psychiatric hospital . The person concerned has not shown the necessary willingness to stay in a psychiatric hospital voluntarily . ”", "On DATE the applicant was admitted to a psychiatric hospital .", "On DATE she lodged an appeal on points of law ( cassatie ) with ORG against the issuing of the observation order . She submitted grounds of appeal including , as relevant to the case before the ORG , that in breach of section CARDINAL(CARDINAL ) of the LAW she had not been heard by ORG before the observation order was issued and that , by providing that persons could be committed in order to determine whether they were of unsound mind , section CARDINAL sub h of the Act violated LAW , which allowed the detention of persons of unsound mind only after they had been determined actually to be of unsound mind .", "NORP In parallel , the applicant started summary injunction proceedings ( kort geding ) before the Provisional Measures Judge ( voorzieningenrechter ) of ORG of GPE , seeking the immediate suspension of her committal . On DATE the Provisional Measures Judge gave judgment dismissing the applicant ’s claims . The reasoning included the finding that the hearing of CARDINAL DATE had been focused on the deprivation of liberty and that the applicant had been informed of the likelihood that an observation order would be given ; a statement made by the applicant ’s representative to the effect that the judge had informed him by telephone that another hearing would take place was dismissed as unproven .", "The applicant remained in hospital until DATE .", "On DATE ORG declared the applicant ’s appeal inadmissible for lack of interest as the order in issue had already lapsed in the meantime . However , in view of the relevance of the legal questions raised by the grounds for the appeal , ORG nonetheless addressed the merits of a number of her grounds of appeal .", "Its reasoning , obiter dictum , was as follows :", "“ CARDINAL . ORG nonetheless considers it useful , in view of the importance of the legal questions arising from the points of appeal , to consider the following .", "The observation order given by ORG in pursuance of section CARDINAL of ORG is grounded on ORG assessment of the state of the person concerned , which is in the following terms :", "[ etc . , see paragraph CARDINAL above ]", "Point of appeal no . CARDINAL argues that section CARDINAL ) of ORG is incompatible with LAW ) of the LAW , because that provision only allows the detention of persons actually of unsound mind , whereas section CARDINAL ) of ORG provides for compulsory admission to determine whether there is an impairment of the mental faculties .", "On this point , ORG takes the following view . It follows from the case - law of ORG cited in ... the advisory opinion of ORG that it is , in principle , permissible to deprive persons of unsound mind of their liberty if it has been reliably shown ( op deugdelijke wijze is aangetoond ) that the person concerned is of unsound mind . Nevertheless , the ORG has considered it acceptable that a person may briefly be detained in a psychiatric hospital involuntarily so that it can be determined whether he or she is suffering from a mental illness , but only in urgent cases or when the person concerned is detained in connection with his or her violent behaviour , the examination then having to take place immediately after the deprivation of liberty . In all other cases , an examination into the mental state must precede any deprivation of liberty . If however such an examination proves impossible because the person concerned refuses to submit to examination , review by a medical expert on the basis of the file may suffice , in the absence of which it can not be assumed that the person concerned is mentally ill .", "An observation order within the meaning of section DATE of ORG is intended , according to the second paragraph of that provision , to determine whether there is a disturbance of the mental factulties and whether the disturbance causes the person concerned to pose a danger to him or herself . The order can be given if , as section CARDINALh(CARDINAL ) provides , there is serious reason to believe ( het ernstig vermoeden bestaat ) that he or she is suffering from a disturbance of his or her mental faculties ( stoornis van de geestvermogens ) which could lead him or her to pose a danger to him- or herself . Section CARDINALh(CARDINAL ) provides that the application for an observation order must be accompanied by a medical report as referred to in that provision , from which it appears that there is a case as referred to in section CARDINALh(CARDINAL ) . Taking this into account , ORG considers it acceptable under LAW to give an observation order only if on the basis of the medical report submitted it can be assumed , with sufficient certainty , that the person concerned is suffering from a disturbance of the mental faculties requiring further examination within the framework of the observation and there is serious reason to believe that that disturbance causes him or her to pose a danger to him or herself . To that extent , it is correctly argued that section DATE , in setting the condition that there is serious reason to believe that the mental disturbance should lead the person concerned to pose a danger to him- or herself , gives a wider description of the cases in which an observation order can be granted than is compatible with LAW .", "Nonetheless , and even assuming that the appeal on points of law were admissible , the point of appeal would not have led ORG to quash ORG judgment . ORG has in fact found , on the basis of the medical report submitted , that the person concerned is suffering from a paranoid delusional disorder within the framework of schizophrenia and that there is serious reason to believe that the person concerned , as a result of this disturbance of her mental faculties , displays noisome behaviour and thereby provokes the aggression of others against herself . In so finding , ORG has not applied section DATE of ORG in a way that is incompatible with LAW .", "Points of appeal CARDINAL and CARDINAL ... complain that ORG acted contrary to section CARDINAL(CARDINAL ) of ORG by deciding without hearing the person concerned and on the basis , additionally , of a new medical report which the person concerned has not been able to challenge . ORG has heard the person concerned on DATE , it is true , but that concerned the public prosecutor ’s application ... of DATE for a povisional order within the meaning of section CARDINAL of ORG . It appears that ORG then applied section CARDINAL of ORG , after which the public prosecutor lodged the application for an observation order which ORG accepted in its decision of CARDINAL DATE , which later application , according to the documents contained in the case file , was accompanied by a new medical report dated DATE . ORG does not allow a person concerned to be heard in advance , nor that a person concerned should waive in advance his or her right to be heard on an application for an order based on ORG that has yet to be submitted . ”", "The applicant has submitted a letter from the medical director for compulsory admissions ( geneesheer - directeur ORG ) , dated CARDINAL DATE , which is in the following terms :", "“ Further to your letter ... received on DATE , we herewith confirm in writing our telephone conversation of this afternoon concerning the observation order for PERSON", "We do not subscribe to the ground you rely on to argue that the effect of the decision to give an observation order is suspended . We will therefore not comply with your request to release PERSON from our hospital .", "...", "We have a valid judicial decision for an observation order for Ms S.R. Section CARDINALh(CARDINAL ) taken together with section CARDINAL(CARDINAL ) of ORG provides that the court ’s decision is immediately enforceable ( bij voorraad uitvoerbaar ) . Section CARDINAL ) taken together with section CARDINAL(CARDINAL ) of ORG provides that no appeal on the merits ( hoger beroep ) lies against the decision . It is however possible to lodge an appeal on points of law with ORG . ... ”", "NORP The applicant states that she requested the public prosecutor to seek a decision of the court in the matter , but that the public prosecutor refused .", "The applicant has submitted a letter from a psychiatrist , dated DATE , on the letterhead stationery of the psychiatric hospital . It reads as follows :", "“ The patient was in our care from DATE until DATE .", "Psychiatric history :", "CARDINAL : ORG for Out - Patient Mental Health Treatment ( ORG voor ORG ; “ RIAGG ” ) tried to develop a therapeutic relationship with the patient because of persistent complaints from several neighbours about noise .", "DATE : ORG Out - Patient Clinic . Conclusion : A DATE woman who has serious problems with her neighbours , CARDINAL conflicting stories exist . It is not possible to reach a diagnosis on the information available .", "Anamnesis and progress :", "The patient is very loquacious and towards the end of discussions gets bogged down in a story line that can not any longer be followed . The content of the discussions concerns all the injustice that has been done to her over DATE by her PERSON carer and the neighbours . She also alleges that injustice is done to her by an institutional landlord from whom she rents her second home . None of this can be verified . In other words , it is difficult to assess whether her allegations or ‘ innocent LOC are within the bounds of what is normal or paranoid delusions ( paranoïde wanen ) .", "Psychiatric examination :", "Well - groomed , is busy at the table in the lounge making some loose notes . She is lucid , her recognition of persons and orientation in time and place are intact . Her perceptive faculties appear unimpaired but the patient will not discuss perception at any length . Her thinking is very diffuse and for a short period incoherent . Her mood is normal with a somewhat pronounced , not always quite adequate , modulating effect .", "Provisional conclusion :", "As far as can be established on the basis of the observation [ emendation by the ORG ] , neither the observation of the patient ’s behaviour nor repeated psychiatric examination have provided clear indications of psychosis . Mild psychotic symptoms can however be dissembled .", "Classification according to ORG :", "Axis I : Diagnosis deferred", "ORG : Diagnosis deferred . ”", "At the time of the events complained of , ORG , in its relevant parts , provided as follows :", "“ CARDINAL . The court may , on the application of the public prosecutor , issue provisional authorisation for committal of a person whose mental faculties are disturbed to be admitted and kept in a psychiatric hospital . ... ”", "“ CARDINAL . NORP Before taking a decision on the application for provisional authorisation the court shall hear the person in respect of whom the authorisation is sought , unless it finds that the person concerned is not willing to be heard . ... ”", "“ If on the basis of its examination ORG has doubts as to whether in the given circumstances a measure other than that requested might not be more suitable , it may communicate these doubts to the public prosecutor ; if necessary the ORG shall indicate at the same time that its consideration of the case will be continued at a later time . ”", "“ ...", "No appeal on the merits shall lie against the decision to grant provisional authorisation . ... ”", "“ CARDINAL . The decision of the court shall be immediately enforceable . ... ”", "“ CARDINAL . The court may , on the application of the public prosecutor , issue an authorisation for committal for observation to have the person concerned admitted and kept in a psychiatric hospital if there is serious reason to believe ( het ernstig vermoeden ORG ) that he or she is suffering from a disturbance of his or her mental faculties ( stoornis van de geestvermogens ) which could lead him or her to pose a danger to him- or herself .", "An authorisation for committal for observation shall serve to examine whether :", "a. a disturbance of the mental faculties exists ; and", "b. such disturbance leads the person concerned to pose a danger to him- or herself .", "The authorisation for committal for observation shall be valid for DATE after DATE on which the person concerned is admitted to a psychiatric hospital , without prejudice to [ section ... DATE ] .", "Sections ... CARDINAL ) , first sentence , CARDINAL(CARDINAL)-(CARDINAL ) , [ and ] CARDINAL(CARDINAL)-(CARDINAL ) ... shall apply by analogy , it being understood that it must appear from the medical report ... that the situation is one as referred to in the first paragraph . ”", "“ CARDINAL . If the person in relation to whom the public prosecutor had submitted a request for an order as referred to in this chapter [ including , at the time , section DATE ] , or for a decision ordering release ... , has suffered damage as a result of the failure of the court or the public prosecutor to observe CARDINAL of the provisions in this chapter [ which includes the above provisions ] ... , the court shall , at the request of the person concerned , award him or her damages to be determined in equity at the ORG ’s expense . ”", "“ CARDINAL . A patient held in a psychiatric hospital in the application of chapter II , § § CARDINAL through CARDINAL [ i.e. including sections DATE , CARDINAL , DATE of this Act ] ... can ask the medical director of the psychiatric hospital for the conditional release or release of the patient from the hospital .", "...", "NORP In case of a refusal , the person who has received the decision ... may request the public prosecutor to seek the decision of the court . The request shall be in writing ; a copy of the original request and the decision of the medical director shall be appended . ... ”", "A sunset clause was linked to section DATE , providing for an evaluation of the measure as of DATE , after which it would lapse automatically on DATE unless extended by order in council ( algemene maatregel van bestuur ) . The Government having elected not to extend it , it lapsed automatically on DATE .", "Recommendation Rec(CARDINAL)CARDINAL of ORG to member states concerning the protection of the human rights and dignity of persons with mental disorder , in its relevant part , reads as follows :", "“ CARDINAL . A person may be subject to involuntary placement only if all the following conditions are met :", "i. the person has a mental disorder ;", "ii . NORP the person ’s condition represents a significant risk of serious harm to his or her health or to other persons ;", "iii . the placement includes a therapeutic purpose ;", "iv . no less restrictive means of providing appropriate care are available ;", "v. the opinion of the person concerned has been taken into consideration .", "The law may provide that exceptionally a person may be subject to involuntary placement , in accordance with the provisions of this chapter , for the minimum period necessary in order to determine whether he or she has a mental disorder that represents a significant risk of serious harm to his or her health or to others if :", "i. his or her behaviour is strongly suggestive of such a disorder ;", "ii . his or her condition appears to represent such a risk ;", "iii . there is no appropriate , less restrictive means of making this determination ; and", "iv . the opinion of the person concerned has been taken into consideration . ”" ]

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[ "The applicant was born in DATE and lives in GPE , LOC .", "In DATE the applicant sued ORG and ORG for an unfounded criminal prosecution . On DATE the ORG of ORG awarded the applicant damages . This judgment became binding on DATE , but was not enforced immediately .", "The applicant mailed enforcement papers to the bailiff ’s service having territorial jurisdiction over ORG head office . The service returned the papers and explained that they should be mailed to the ORG .", "The applicant mailed the papers to the ORG , but the ORG returned them because of several defects : the copy of the judgment was not certified , the writ of enforcement contained no time - limit , and the name of the court indicated in the papers mismatched that indicated in the seals .", "The applicant removed these defects and on DATE resubmitted the papers . On DATE the judgment was enforced .", "Under LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE ." ]

[ "6", "P1" ]

[ "P1-1" ]

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[ "The applicant was born in DATE and is currently serving a prison sentence in FAC in GPE .", "NORP In criminal proceedings against armed gangs operating during the political turmoil in GPE from DATE , the ORG public prosecutor 's office accused the applicant of being CARDINAL of the instigators of an armed gang known as the “ LOC ” . The gang , organised as a military commando , aimed to avenge the murder of their members in conflicts with other gangs and was financed by extorting money from various businessmen in the area .", "In DATE the applicant was charged before ORG with CARDINAL counts of murder , CARDINAL counts of attempted murder , CARDINAL count of possession of military weapons and CARDINAL count of creating and participating in an armed gang .", "At public hearings before the court on DATE , CARDINAL DATE and DATE the applicant 's lawyer , PERSON , was present . However , during the period from DATE to DATE the lawyer did not assist the applicant , nor did the latter have an officially assigned lawyer . The applicant submitted that at the hearings during that period the public prosecutor 's office had summoned witnesses against him , questioned witnesses who were present and also produced other evidence against him . The applicant 's lawyer had summoned CARDINAL witnesses on the applicant 's behalf but they did not appear at the trial .", "According to the applicant 's submissions , no defence counsel assisted him during the stage at which the parties made their final submissions . In this context , it transpires from TIME of the public hearings that the applicant 's lawyer was absent without reason and that the applicant refused to make his closing defence submissions himself . In that connection , the applicant complained that he had requested the court to officially assign him a defence lawyer , but had not received a reply .", "According to the ORG 's submissions , the first - instance court proceedings lasted DATE and CARDINAL hearings were arranged . The court 's hearings were adjourned on several occasions as a result of the unjustified absence of lawyers , especially the applicant 's lawyer . The latter was absent at CARDINAL consecutive court hearings without giving any reasons .", "In all , only QUANTITY hearings were actually held and ten could not take place on account of the lawyers ' absence . the court then ordered the assignment of PERSON , an official lawyer , who was present at the hearing on DATE . However , the applicant refused to be defended by a lawyer not chosen by him . the court accordingly discharged the officially assigned lawyer and continued the proceedings in the applicant 's presence , but without any defence lawyer .", "NORP By letter of CARDINAL DATE ORG informed the Minister of ORG , among others , of the misconduct on the part of the applicant 's counsel and requested him to intervene in the matter . However , no disciplinary measures relating to Mr Leli were taken by ORG .", "On DATE ORG found the applicant guilty and sentenced him to life imprisonment .", "On DATE the applicant lodged an appeal with ORG against the judgment of DATE . He alleged that during the ORG hearings he had been denied a fair trial in that he had not been assisted by a lawyer during DATE of the trial . Such a lawyer would have enabled him to prepare his defence and to summon the defence witnesses . He claimed that he had not been assisted even in the presentation of his final submissions . He also claimed that he had been abroad during the period when CARDINAL or more of the crimes with which he had been charged had been committed , and produced customs stamps in his passport to prove that he had left the country . In his appeal , the applicant did not request the examination of any witnesses .", "On DATE ORG upheld ORG judgment of DATE , while making several changes to the sentences imposed for the different counts . The changes concerned did not modify the sentence of life imprisonment .", "On DATE the applicant lodged an appeal with ORG , alleging that , in breach of his constitutional rights , he had been denied the right to be legally represented in the proceedings . He complained in particular that , although he had not been duly represented , ORG had proceeded to examine witnesses against him and to consider other evidence .", "On DATE ORG upheld ORG decision on the following grounds :", "“ The violations alleged by the appellant were noted and redressed by ORG without having a significant influence on the substance of the first - instance judgment . During the pre - trial stage and also the trial itself , the accused was granted legal assistance . In the court 's opinion , the unjustified absence of defence counsel , in agreement with the accused , in order to adjourn the trial could not have as a consequence the absolute nullity of ORG judgment . ”", "NORP The applicant then lodged a complaint with ORG , relying on LAW . On DATE ORG , in accordance with LAW ( Law no . CARDINAL ) of DATE , decided de plano to declare the complaint inadmissible as being “ outside its jurisdiction ” .", "The relevant provisions of LAW provide :", "“ During criminal proceedings everyone has the right :", "...", "( ç ) to defend himself or to be assisted by defence counsel chosen by him ; to communicate freely and privately with him , and to be provided with defence counsel free of charge if he does not have sufficient means ;", "( d ) to question witnesses who are present and to request the appearance of witnesses , experts and other persons who can clarify the facts . ”", "“ CARDINAL . The freedom , property and rights recognised in the LAW and by law may not be infringed without a fair hearing .", "In order to protect his constitutional and legal rights , freedoms and interests , or when an accusation has been made against him , everyone has the right to a fair and public trial , within a reasonable time , by an independent and impartial tribunal established by law . ”", "Insofar as relevant , LAW provides :", "“ ...", "Then the presence of a defence lawyer is required and the selected or appointed defence lawyer has not been provided , has not appeared or has abandoned the defence , the court or the prosecutor shall appoint another lawyer as substitute , who shall exercise the rights and assume the obligations of the defence lawyer . ”" ]

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[ "6" ]

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[ "The applicants are CARDINAL full siblings :", "– Z , a girl born in DATE ;", "– A , a boy born in DATE ;", "– B , a boy born in DATE ;", "– C , a girl born in DATE .", "The applicants ' parents were married in DATE .", "The family was first referred to social services in DATE by their health visitor due to concerns about the children and marital problems . Z was reported to be stealing food at TIME . Following the referral , a professionals ' meeting , involving the relevant agencies , was held on DATE , at which it was decided that a social worker and health visitor should visit . The family were reviewed at a further meeting in DATE and as it appeared that concerns had diminished , the file was closed .", "NORP In DATE a neighbour reported that the children were locked outside the house for most of DATE .", "NORP In DATE the police reported that the children 's bedrooms were filthy . The family 's general practitioner also reported that the children 's bedrooms were filthy and that their doors were locked . The children 's head - teacher , PERSON , expressed concern in DATE and requested a case conference . In DATE the ORG ( ORG ) and the emergency team made a referral after complaints by neighbours that the house was filthy and that the children spent most of DATE in their bedrooms , rarely being allowed out to play , and crying frequently . In DATE the maternal grandmother complained to the social services about the mother 's care and discipline of the children .", "At a professionals ' meeting on DATE , at which the social services , the applicants ' head - teacher , the applicants ' general practitioner and health visitor attended , it was decided that no social worker would be allocated to the family . The school was to monitor the older children 's weight and the health visitor was to continue to visit the family regularly . It was agreed that the problem was CARDINAL of limited and neglectful parenting rather than a risk of physical abuse , and that the parents should be assisted to manage their responsibilities better .", "NORP In DATE , whilst the applicants were on holiday , their house was burgled . On entering , the police found it in a filthy state . Used sanitary towels and dirty nappies were discarded in a cupboard and the children 's mattresses were sodden with urine . At a professionals ' meeting on CARDINAL DATE , the health visitor requested that the CARDINAL older children be placed on ORG as she felt that their mother could not offer consistent care . This suggestion was rejected . However , a social - work assistant , PERSON , was assigned to the family . It was not considered appropriate to convene a case conference at this stage . Prior to the meeting , Z and A had mentioned to the head - teacher that A had been hit with a poker . It was decided that this statement would be investigated .", "At a professionals ' meeting on DATE , an improvement was noted in respect of the cleanliness of the house , the children 's bedding being clean save on CARDINAL occasions . However , it was reported that Z and A were taking food from bins at the school . There was still considered to be cause for concern , especially since the birth of another child was expected .", "At a professionals ' meeting on DATE , the applicants ' headmistress reported a deterioration in the children 's well - being ; Z and A were still taking food from bins and A was soiling himself . PERSON was visiting DATE at this stage and said that she was checking the children 's bedrooms . She had noted that the children ate at DATE or TIME and then did not eat again until TIME . The children were also sent to bed at TIME It was planned to give the applicant 's mother further assistance through a voluntary agency .", "In or DATE , A and B were both reported to have bruising on their faces . The police investigated after neighbours had reported screaming at the applicants ' home but apparently found no signs of bruising . They reported to the social services that “ the conditions of the house were appalling and not fit for [ the ] children to live in ” .", "At a further professionals ' meeting on DATE , the assistant social worker , PERSON , stated that she was concerned about the applicants ' soiling and their mother 's lack of interest . Apparently , the children were defecating in their bedroom and smearing excrement on their windows . The head - teacher expressed concern , particularly concerning the boys A and B , and stated that the children had described blocks of wood being placed against their bedroom doors . It was decided to continue monitoring the children .", "At a professionals ' meeting on DATE , a decision was made to arrange a case conference for DATE as a result of concern regarding the applicants ' care and the state of their bedroom . PERSON considered that standards in the boys ' bedroom had dramatically dropped . She found the room to be damp and smelly . A 's bed was broken and had a metal bar protruding from it . The bedding was damp and grubby with soil marks .", "NORP In a report dated DATE , the headmistress stated that A was shabby , ill - kempt and often dirty and that he had been raiding the playground bins for apple cores . Z was pathetic , lacking in vitality and frequently and inexplicably tearful , becoming increasingly isolated from the other girls in her peer group with unfortunate incidents in which detrimental remarks were made about her appearance . B presented as withdrawn , pathetic and bedraggled . He regularly arrived cold , was frequently tearful and craved physical contact from adult helpers . He also appeared to crave for food . She concluded that they were still concerned that the children 's needs were not being adequately met and that home conditions and family dynamics were giving reasons for concern .", "At the case conference held on DATE , PERSON stated that the boys ' bedroom had no light , carpet or toys and that their bedding was wet , smelly and soil - stained . Their mother did not change the beds . Their head - teacher stated that Z was tearful and withdrawn , A had been raiding school bins and was often dirty , and B was very withdrawn , craved attention and was ravenously hungry . The chairman of the conference concluded that , despite the many concerns about the parenting of the applicants and the conditions in the home , there was little evidence to support going to court . It was felt that the parents were not wilfully neglecting their children and , bearing in mind their own poor upbringing , it was considered that the applicants ' parents were doing what they could and that continued support was required to try and improve the situation . It was decided not to place the children on ORG .", "On DATE B was found to have “ unusual ” bruises on his back .", "At a later social services meeting in DATE , no change to the children 's living conditions was noted . The head - teacher stated that Z and A were still taking food from bins and that A was becoming more withdrawn . PERSON reported that the mother had stated that the children were taking food from the park bins on the way to school .", "NORP In DATE the applicants ' mother informed social services that the children would be better off living in care . On DATE the social services received a phone call from a neighbour who stated that the children were frequently locked outside in a filthy back garden , that they constantly screamed and that they were kept for long periods in their bedrooms where they smeared faeces on their windows . The maternal grandparents later told the guardian ad litem that Z , who was treated by her mother as a little servant , was expected to clean the excrement from the windows .", "From DATE , the CARDINAL older children spent some time with foster carers in respite care . The foster carers reported that A did not know how to wash , bathe or clean his teeth on arrival . He wet his bed every night and stole food from his brother . B was described as being “ very frightened . He could not understand how he could play in the garden and the door was left open for him to come back in , he expected to be locked out ” . He also had to be taught to use the toilet properly and to clean himself .", "At a professionals ' meeting on DATE , PERSON stated that the conditions in which the boys were sleeping were deteriorating . The mattresses in the boys ' bedroom were ripped and the springs were coming through . The boys were stealing food , and C had also been seen to do this . Their mother stated that she could not control them . It was decided not to arrange a child - protection meeting but to carry out a DATE weight check on the CARDINAL older children at school , and for the health visitor to check the weight of the CARDINAL younger children . It was also decided to arrange respite care for Z , A and B in DATE as well as on DATE in CARDINAL .", "In DATE C was found to have developed a squint . His mother failed to keep appointments at the eye - clinic DATE .", "At a professionals ' meeting on CARDINAL DATE , it was reported that the applicants ' mother had said that she could not control the applicants ' behaviour which consisted of refusing to go to bed when asked and stealing food . It was considered that the home was in an acceptable condition , though the boys ' room still needed attention . The children 's weights were recorded . It was noted that Z had put on QUANTITY lb in DATE whereas she had only put on QUANTITY in DATE . A had only put on QUANTITY year . B had put on QUANTITY in DATE and was on the CARDINALth centile for height . C was on the CARDINALth centile for weight . There was a discussion about the CARDINAL elder children being accommodated by the local authority to allow the mother “ to get back on her feet ” . The social services considered a DATE period whilst the general practitioner envisaged a period of DATE to twenty - four months .", "NORP In DATE a social worker was introduced to the applicants ' mother with a view to assisting her with shopping , budgeting and cooking .", "Z , A and B were accommodated by volunteers DATE , and showed to have gained weight . In DATE and again in DATE , their mother asked if the boys , A and B , could be placed for adoption .", "On DATE C started to attend a nursery group at a family centre . She was noted to be unsocialised , lacking in confidence , unable to share , and with poor speech .", "At a further professionals ' meeting on DATE , it was decided that further respite care would be considered . The children 's weights were noted , increases being seen for ORG , A and B.", "The children 's parents divorced in DATE .", "At another professionals ' meeting on DATE it was decided that the applicants ' mother 's request that A and B be placed for adoption be followed up . The headmistress voiced concern over the fundamental pattern of the mother 's care of the children , in particular in relation to ORG 's role in the home and the mothering role which she played . PERSON reported that conditions were deteriorating for A and B.", "On DATE the applicants ' mother demanded that the children be placed in care as she could not cope . She stated that if they were not removed from her care she would batter them . The applicants were placed in emergency foster care . The applicants were entered onto ORG under the categories of neglect and emotional abuse after a child - protection meeting on DATE .", "The applicants were all fostered separately . Initially , Z was noted to have dirty , ill - fitting clothes . She stated that she did not like living with her siblings as she did not like having to look after them all the time . A wet the bed every night , shunned physical contact and suffered from nightmares . B did not know how to use the toilet or toilet paper . C bonded very quickly with her foster parents .", "On DATE the local authority decided to seek care orders in respect of the children . Interim care orders were made on DATE .", "A guardian ad litem , who was appointed on DATE , recommended that all the applicants should be the subject of care orders in order to protect them from further harm . She stated that there was “ an abundance of evidence that the children have been subjected to physical and mental ill - treatment ” . She noted that their health had also been neglected by their parents who frequently missed appointments with opticians and doctors .", "All the applicants were seen by Dr PERSON , a consultant child psychiatrist , in DATE . PERSON stated that the CARDINAL older children were all showing signs of psychological disturbance . Z was exhibiting signs of serious depressive illness and had assumed responsibility for her family and for its breakdown . Her mother 's behaviour towards her was described as cruel and emotionally abusive . A and B , who suffered from nightmares , were both identified as showing signs of post - traumatic stress disorder and A was also chronically under - attached . PERSON noted that all children had been deprived of affection and physical care . She described their experiences as “ to put it bluntly , horrific ” , and added that the case was the worst case of neglect and emotional abuse that she had seen in her professional career . In her opinion , social services had “ leaned over backwards to avoid putting these children on ORG and had delayed too long , leaving CARDINAL of the children with serious psychological disturbance as a result ” .", "Full care orders were made in respect of the applicants on DATE by Judge PERSON sitting at ORG .", "In DATE the Official Solicitor , acting as the applicants ' next friend , commenced proceedings against the local authority claiming damages for negligence and/or breach of statutory duty arguing that the authority had failed to have regard to their welfare as was required by statute and should have acted more quickly and more effectively when apprised of their condition . It was argued that the local authority 's failure to act had resulted in psychological damage . The application was struck out as revealing no cause of action , by Mr Justice PERSON on DATE .", "The applicants appealed to ORG , which , on CARDINAL DATE , upheld the decision of Mr Justice PERSON to strike out the application .", "The applicants appealed to ORG . On DATE ORG rejected their appeal , finding that no action lay against the local authority in negligence or breach of statutory duty concerning the discharge of their duties relating to the welfare of children under LAW DATE in respect of child care . The case is reported as NORP and Others v. ORG [ DATE ] CARDINAL All England Law Reports CARDINAL .", "Lord PERSON gave the leading judgment . In respect of claims for breach of statutory duty , he stated , inter alia :", "“ ... My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community . The welfare sector involved is CARDINAL of peculiar sensitivity , involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents . In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if , on subsequent investigation with the benefit of hindsight , it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties . ...", "When CARDINAL turns to the actual words used in the primary legislation to create the duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action . ”", "As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence , Lord PERSON stated , inter alia :", "“ I turn then to consider whether , in accordance with the ordinary principles laid down in GPE [ DATE ] CARDINAL AC CARDINAL , the local authority ... owed a direct duty of care to the plaintiffs . The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority and the plaintiffs is sufficiently proximate . The third requirement laid down in GPE is that it must be just and reasonable to impose a common law duty of care in all the circumstances ...", "The Master of the Rolls took the view , with which I agree , that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy ( see [ DATE ] CARDINAL AER CARDINAL at CARDINAL ) . However , in my judgment there are such considerations in this case .", "First , in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk . As a result of the ministerial directions contained in ' ORG the protection of such children is not the exclusive territory of the local authority 's social services . The system is inter - disciplinary , involving the participation of the police , educational bodies , doctors and others . At all stages the system involves joint discussions , joint recommendations and joint decisions . The key organisation is ORG , a multi - disciplinary body which decides whether to place the child on ORG . This procedure by way of joint action takes place , not merely because it is good practice , but because it is required by guidance having statutory force binding on the local authority . The guidance is extremely detailed and extensive : the current edition of ' ORG runs to CARDINAL pages . To introduce into such a system a common law duty of care enforceable against CARDINAL of the participant bodies would be manifestly unfair . To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability , both primary and by way of contribution , of each for reaching a decision found to be negligent .", "Second , the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate . Legislation requires the local authority to have regard not only to the physical well - being of the child but also to the advantages of not disrupting the child 's family environment . ... In one of the child abuse cases , the local authority is blamed for removing the child precipitately ; in the other for failing to remove the children from their mother . As the Report of the Inquiry into Child Abuse in GPE DATE ( ORG . CARDINAL ) ( ' ORG DATE ' ) said , at p. CARDINAL :", "' ... It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough . Social services whilst putting the needs of the child first must respect the rights of the parents ; they also must work if possible with the parents for the benefit of the children . These parents themselves are often in need of help . Inevitably a degree of conflict develops between those objectives . '", "ORG , if liability in damages were to be imposed , it might well be that local authorities would adopt a more cautious and defensive approach to their duties . For example , as ORG makes clear , on occasions the speedy decision to remove the child is sometimes vital . If the authority is to be made liable in damages for a negligent decision to remove a child ( such negligence lying in the failure properly first to investigate the allegations ) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts . Not only would the child in fact being abused be prejudiced by such delay , the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children .", "The relationship between the social worker and the child 's parents is frequently CARDINAL of conflict , the parent wishing to retain care of the child , the social worker having to consider whether to remove it . This is fertile ground in which to breed ill - feeling and litigation , often hopeless , the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided . The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty . But the circumstances surrounding cases of child abuse make the risk a very high one which can not be ignored .", "If there were no other remedy for maladministration of the statutory system for the protection of children , it would provide substantial argument for imposing a duty of care . But the statutory complaints procedures contained in section DATE of LAW and the much fuller procedures now available under LAW provide a means to have grievances investigated though not to recover compensation . Further , it was submitted ( and not controverted ) that the local authorities ORG would have power to investigate cases such as these .", "Finally , your Lordships ' decision in Caparo [ DATE ] CARDINAL AC CARDINAL lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories . We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases . Here , for the first time , the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme . Such a scheme is designed to protect weaker members of society ( children ) from harm done to them by others . The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who , under the general law , are responsible for the child 's welfare . To my mind , the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police ( in seeking to protect vulnerable members of society from wrongs done to them by others ) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty . In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer . ... In my judgment , the courts should proceed with great care before holding liable in negligence those who have been charged by ORG with the task of protecting society from the wrong doings of others . ”", "Z and C , the CARDINAL girls , were meanwhile adopted . The boys , A and B , were initially in foster care . Following the breakdown of B 's adoptive placement , he was placed in a therapeutic residential placement in DATE . After DATE , he was again placed with foster parents where he remained , attending school in a special - needs group . In DATE , A was placed in a therapeutic community , where he stayed for DATE . He apparently had a number of foster placements which broke down . Records indicated that he had been in CARDINAL different placements in DATE . He is currently in a children 's home .", "In DATE , applications were made to ORG ( CICB ) on behalf of all the children by the adoption society to whom the local authority had delegated certain responsibilities . It was claimed on behalf of Z that she had suffered severe neglect and chronic deprivation which rendered it likely that specialist care would be necessary during her adolescence , a time where emotional repercussions of the abuse might become apparent ; on behalf of A that he had suffered physical deprivation , emotional abuse , physical abuse and possible sexual abuse – he had suffered permanent physical scarring and was still receiving treatment from a child psychiatrist ; on behalf of B that he had suffered extreme physical and emotional deprivation and shown signs of sexual abuse – he also had suffered permanent physical scarring and was receiving therapy ; and on behalf of C that she had suffered extreme physical and emotional deprivation , and in addition that her need for eye treatment was not being met by her parents .", "In DATE , the CICB awarded MONEY ( GBP ) to Z , GBP CARDINAL to A and GBP CARDINAL,CARDINAL to B for injuries suffered DATE ; it awarded GBP CARDINAL to C for injuries suffered DATE . In a letter dated DATE from the PERSON to ORG , it was stated :", "“ ORG Member who assessed these cases recognised that the children were exposed to appalling neglect over an extended period but explained to their advisers that the ORG could not make an award unless it was satisfied on the whole available evidence that an applicant had suffered an injury DATE physical or psychological – directly attributable to a crime of violence ... He was nevertheless satisfied , that setting aside ' neglect ' the children had some physical and psychological injury inflicted upon them as enabled him to make an award to each child ... ”", "Prior to the coming into force of the current legislation , LAW DATE , on DATE , the local authority 's duty in respect of child care was governed by LAW .", "Sections CARDINAL and CARDINAL of LAW DATE provided that :", "“ CARDINAL . It shall be the duty of every local authority to make available such advice , guidance and assistance as may promote the welfare of children by diminishing the need to receive or keep them in care .", "( CARDINAL ) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of CARDINAL -", "( a ) that he has neither parent nor guardian or has been and remains abandoned by his parents or guardian or is lost ;", "( b ) that his parents or guardian are , for the time being or permanently , prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation , maintenance and upbringing ; and", "( c ) in either case , that the intervention of the local authority under this section is necessary in the interests of the welfare of the child , it shall be the duty of the local authority to receive the child into their care under this section . ”", "Section CARDINAL of LAW DATE has since provided , inter alia :", "“ CARDINAL . Provision of services for children in need , their families and others", "( CARDINAL ) It shall be the general duty of every local authority ( in addition to the other duties imposed on them by this Part ) -", "( a ) to safeguard and promote the welfare of children within their area who are in need ; and", "( b ) so far as is consistent with that duty , to promote the upbringing of such children by their families ,", "by providing a range and level of services appropriate to those children 's needs .", "( CARDINAL ) For the purpose principally of facilitating the discharge of their general duty under this section , every local authority shall have the specific duties and powers set out in Part I of Schedule CARDINAL .", "...", "( CARDINAL ) For the purposes of this Part a child shall be taken to be in need if -", "( a ) he is unlikely to achieve or maintain , or to have the opportunity of achieving or maintaining a reasonable standard of health or development without the provision for him of services by a local authority under this Part ;", "( b ) his health or development is likely to be significantly impaired or further impaired , without the provision for him of such services ; or", "( c ) he is disabled ...", "( CARDINAL ) ... ; and in this Part", "' development ' means physical , intellectual , emotional , social or behavioural development ; and", "' health ' means physical or mental health . ”", "Part III of LAW DATE deals with local authority support for children and families . The policy of the LAW is made clear by paragraph CARDINAL of Part I of Schedule CARDINAL , which requires local authorities to take reasonable steps designed to reduce the need to bring proceedings relating to children .", "Section CARDINAL provides that", "“ CARDINAL ) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of -", "( a ) there being no person who has parental responsibility for him ;", "( b ) his being lost or having been abandoned ; or", "( c ) NORP the person who has been caring for him being prevented ( whether or not permanently , and for whatever reason ) from providing him with suitable accommodation or care .", "...", "( CARDINAL ) A local authority may provide accommodation for any child within their area ( even though a person who has parental responsibility for him is able to provide him with accommodation ) if they consider that to do so would safeguard or promote the child 's welfare . ”", "Part V of LAW DATE deals with the protection of children . Section CARDINAL provides as follows :", "“ CARDINAL(CARDINAL ) Where a local authority -", "...", "( b ) have reasonable cause to suspect that a child who lives or is found , in their area is suffering , or is likely to suffer , significant harm ,", "the authority shall make , or cause to be made , such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child 's welfare .", "...", "( CARDINAL) Where , as a result of complying with this section , a local authority conclude that they should take action to safeguard or promote the child 's welfare they shall take action ( so far as it is within their power and reasonably practicable for them to do so ) . ”", "The complaints procedure is provided by section CARDINAL of LAW DATE :", "“ Review of cases and inquiries into representations", "...", "( CARDINAL ) NORP local authority shall establish a procedure for considering any representations ( including any complaint ) made to them by -", "( a ) any child ... who is not being looked after by them but is in need ;", "( b ) a parent of his ;", "...", "( e ) NORP such other person as the authority consider has a sufficient interest in the child 's welfare to warrant his representations being considered by them ,", "about the discharge by the authority of any of their functions under this Part in relation to the child .", "( CARDINAL ) The procedure shall ensure that CARDINAL person who is not a member or officer of the authority takes part in -", "( a ) the consideration ; and", "( b ) any discussions which are held by the local authority about the action ( if any ) to be taken in relation to the child in the light of this consideration .", "...", "( CARDINAL ) Where any representation has been considered under the procedure established by the local authority under this section , the authority shall -", "( a ) have due regard to the findings of those considering the representation ; and", "( b ) take such steps as are reasonably practicable to notify ( in writing ) -", "( i ) the person making the representation ;", "( ii ) the child ( if the authority consider that he has sufficient understanding ) ; and", "( iii ) such other persons ( if any ) as appear to the authority to be likely to be affected ,", "of the authority 's decision in the matter and their reasons for taking that decision and of any action which they have taken , or propose to take .", "( CARDINAL) Every local authority shall give such publicity to their procedure for considering representations under this section as they consider appropriate . ”", "The powers of the Secretary of ORG to investigate the actions of the local authority are set out in sections CARDINAL and CARDINAL of LAW DATE .", "“ CARDINAL . ( CARDINAL ) The Secretary of ORG may cause an inquiry to be held into any matter connected with -", "( a ) NORP the function of the social services committee of a local authority , in so far as those functions relate to children ;", "...", "Local authority failure to comply with statutory duty : default power of Secretary of ORG", "( CARDINAL ) If the Secretary of ORG is satisfied that any local authority has failed , without reasonable excuse , to comply with any of the duties imposed on them by or under this LAW he may make an order declaring that authority to be in default with respect to that duty .", "...", "( CARDINAL ) Any order under subsection ( CARDINAL ) may contain such directions for the purpose of ensuring that the duty is complied with , within such period as may be specified in the order , as appears to the Secretary of ORG to be necessary .", "( CARDINAL ) Any such directions shall , on the application of the Secretary of ORG , be enforceable by mandamus . ”", "In GPE and GPE there is no single tort which imposes liability to pay compensation for civil wrongs . Instead there is a series of separate torts , for example , trespass , conversion , conspiracy , negligence and defamation .", "Negligence arises in specific categories of situations . These categories are capable of being extended . There are CARDINAL elements to the tort of negligence : a duty of care , breach of the duty of care , and damage . The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly . To show a duty of care , the claimant must show that the situation comes within an existing established category of cases where a duty of care has been held to exist . In novel situations , in order to show a duty of care , the claimant must satisfy a CARDINAL test , establishing :", "– that damage to the claimant was foreseeable ;", "– that the claimant was in an appropriate relationship of proximity to the defendant ; and ,", "– that it is fair , just and reasonable to impose liability on the defendant .", "These criteria apply to claims against private persons as well as claims against public bodies . The leading case is ORG plc v. PERSON ( [ DATE ] CARDINAL Appeal Cases CARDINAL ) .", "If the courts decide that as a matter of law there is no duty of care owed in a particular situation , that decision will ( subject to the doctrine of precedent ) apply in future cases where the parties are in the same relationship .", "NORP The decision in NORP and Others v. ORG ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) is the leading authority in GPE in this area . It held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children . The leading judgment is reported at length in the facts above ( see paragraphs CARDINAL above ) .", "Since X and Others v. ORG , there have been CARDINAL further significant judgments regarding the extent of liability of local authorities in child care matters .", "The Court of Appeal gave judgment in PERSON and Others v. ORG ( [ DATE ] CARDINAL All England Law Reports CARDINAL ) . This case concerned the claims by a mother and father ( first and second plaintiffs ) , who had agreed to act as foster parents , that the defendant local authority placed PERSON , a DATE boy , in their home although they knew that he was a suspect or known sexual abuser . During PERSON 's stay in their home , the plaintiffs ' CARDINAL children ( DATE plaintiffs ) were all sexually abused and suffered psychiatric illness . The plaintiffs brought an action against the local authority and the social worker involved , claiming damages for negligence and for negligent misstatement . On the defendants ' application to strike out the statement of claim as disclosing no reasonable cause of action , the judges struck out the parents ' claims but refused to strike out the claims of the children . ORG upheld his decision . The headnote for the judgment summarised ORG findings as follows :", "“ ( CARDINAL ) Although no claim in damages lay in respect of decisions by a local authority in the exercise of a statutory discretion , if the decision complained of was so unreasonable that it fell outside the ambit of the discretion conferred , there was no a priori reason for excluding common law liability . In the instant case , the giving of information to the parents was part and parcel of the defendants ' performance of their statutory powers and duties , and it had been conceded that it was arguable that those decisions fell outside the ambit of their discretion . Accordingly , since it had also been conceded that the damage to the children was reasonably foreseeable and that there was sufficient proximity , the question for the court was whether it was just and reasonable to impose a duty of care on the council or the social worker . Having regard to the fact that common law duty of care would cut across the whole statutory set up for the protection of children at risk , that the task of the local authority and its servants in dealing with such children was extraordinarily difficult and delicate , that local authorities might adopt a more defensive approach to their duties if liability in damages were imposed , that the relationship between parents and social workers was frequently CARDINAL of conflict and that the plaintiff children 's injuries were compensatable under LAW , it was not just and reasonable to do so . It followed that no duty of care was owed to the plaintiff parents who in any event were secondary victims in respect of their claim for psychiatric illness ...", "( CARDINAL ) ( ORG dissenting ) It was arguable that the policy considerations against imposing a common law duty of care on a local authority in relation to the performance of its statutory duties to protect children did not apply when the children whose safety was under consideration were those in respect of whom it was not performing any statutory duty . Accordingly , since in the instant case , the plaintiff children were not children for whom the council had carried out any immediate caring responsibilities under the child welfare system but were living at home with their parents , and express assurances had been given that a sexual abuser would not be placed in their home , their claim should proceed ... ”", "On further appeal by the parents , ORG on DATE held that it was impossible to say that the psychiatric injury allegedly suffered by the parents , flowing from a feeling that they had brought the abuser and their children together or from a feeling of responsibility for not having detected the abuse earlier , was outside the range of psychiatric injury recognised by the law , nor was it unarguable that the local authority had owed a duty of care to the parents . The parents ' claim could not be said to be so certainly or clearly bad that they should be barred from pursuing it to trial and their appeal was allowed .", "ORG gave judgment on DATE in PERSON v. GPE of GPE ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) . That case concerned the claims of the plaintiff , who had been in care from DATE , that the local authority had negligently failed to safeguard his welfare causing him deep - seated psychiatric problems . The local authority had applied to strike out the case as disclosing no cause of action . ORG , upholding the plaintiff 's appeal , unanimously held that the judgment in X and Others v. ORG did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care .", "Lord PERSON , in his judgment in that case , commented as follows on the operation of the duty of care :", "“ ( CARDINAL ) Although the word ' immunity ' is sometimes incorrectly used , a holding that it is not fair , just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject . It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair , just and reasonable in those circumstances to impose liability in negligence . ( CARDINAL ) In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances , e.g. some activities of financial regulators , building inspectors , ship surveyors , social workers dealing with sex abuse cases . In all these cases and many others the view has been taken that the proper performance of the defendant 's primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence . In LANGUAGE law the decision as to whether it is fair , just and reasonable to impose a liability in negligence on a particular class of would - be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would - be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered . ( CARDINAL ) In LANGUAGE law , questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law . Once the decision is taken that , say , company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company ( see ORG plc v. PERSON [ DATE ] CARDINAL All ER CARDINAL , [ DATE ] CARDINAL AC CARDINAL ) , that decision will apply to all future cases of the same kind . The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case . ”", "At the relevant time , LAW , Rule CARDINAL of the Rules of ORG provided that a claim could be struck out if it disclosed no reasonable cause of action . This jurisdiction has been described as being reserved for “ plain and obvious cases ” , in which a claim was “ obviously unsustainable ” .", "In applications to strike out , the courts proceeded on the basis that all the allegations set out in the claimant 's pleadings were true . The question for the courts was whether , assuming that the claimant could substantiate all factual allegations at trial , the claim disclosed a reasonable cause of action .", "DATE . The striking out procedure , now contained in Part CARDINAL.CARDINAL(CARDINAL ) of ORG in force since DATE , is regarded as an important feature of LANGUAGE civil procedure , performing the function of securing speedy and effective justice , inter alia , by allowing a court to decide promptly which issues need full investigation and trial , and disposing summarily of the others . By means of this procedure , it can be determined at an early stage , with minimal cost to the parties , whether the facts as pleaded reveal a claim existing in law ." ]

[ "13", "3" ]

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[ "6" ]

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[ "The applicant owned a house in the village of ORG where he resided at the time of the events .", "On DATE the cables supplying the village with electricity were stolen .", "On DATE a preliminary investigation was opened against the applicant and CARDINAL other individuals for the theft of the electricity cables .", "On DATE the applicant , assisted by a lawyer , was charged with the theft of the electricity cables and a restriction was imposed on him not to leave the village of ORG without the authorisation of the public prosecutor ’s office .", "The preliminary investigation was concluded on an unspecified date and the case was forwarded to the public prosecutor ’s office . On an unspecified date the case was remitted for further investigation .", "On DATE the charges against the applicant were amended ; he was once again assisted by a lawyer .", "NORP The results of the preliminary investigation were presented to the applicant and his lawyer on DATE .", "On an unspecified date the applicant left the village of ORG without authorisation from the public prosecutor ’s office . He claimed to have moved to live at an address in GPE which was registered with the police and where he received his pension .", "On an unspecified date the public prosecutor ’s office entered an indictment against the applicant and his CARDINAL accomplices with ORG for the theft of the electricity cables .", "A copy of the indictment was sent to the applicant ’s address in the village of ORG , apparently by registered post with return receipt . The indictment and the receipt were returned to ORG in their entirety and without an indication whether they had been served .", "The first hearing before ORG was scheduled for DATE , but was postponed , for undisclosed reasons , to CARDINAL DATE .", "A summons to the first hearing was sent to the applicant ’s address in the village of ORG , which was returned without any indication whether it had been served . In an accompanying letter , the mayor of the village of ORG informed ORG that the applicant was not registered as living in the village , that he had not resided there for DATE and that he had moved to the city of GPE .", "At the hearing on DATE the ORG established that the applicant had not been duly summoned because he had not received the summons . Nevertheless , at the request of the public prosecutor ’s office , the court decided to examine the case in his absence as it found that this would not impede the proceedings , and assigned a court - appointed lawyer to represent the applicant .", "The second hearing was conducted on DATE ; the applicant was summoned to it through his court - appointed lawyer .", "In a judgment of CARDINAL DATE ORG found the applicant and his accomplices guilty as charged . The applicant was sentenced to CARDINAL years’ imprisonment .", "No appeal was lodged against the judgment , so it became final on DATE .", "The applicant was arrested on DATE to serve the prison sentence , which he did until DATE .", "On an unspecified date in DATE the applicant requested ORG to reopen the criminal proceedings against him . He relied on Article CARDINALa of the Code of Criminal Procedure DATE ( “ ORG ” : see Relevant domestic law below ) and claimed that he had not been aware of the criminal trial against him . The applicant argued that even though he had been aware of the preliminary investigation against him he could not be expected to constantly follow the subsequent development of the proceedings against him . Moreover , as he had not received the indictment entered against him by the public prosecutor ’s office , he had been unaware that formal court proceedings had been initiated against him . The applicant also argued that once the authorities had established that he was no longer residing in the village of ORG they should have attempted to find him at his other address in GPE , where they would have found him without difficulty .", "NORP In a judgment of CARDINAL DATE ORG dismissed the applicant ’s request to reopen the case . It found that the applicant had been aware of the criminal proceedings against him because he had been present , together with his lawyer , when he had been initially charged on DATE , when the charges had been amended on DATE and also when the results of the preliminary investigation had been presented on DATE . Moreover , he had violated the restriction order imposed on him not to leave the village of ORG without the authorisation of the public prosecutor ’s office and had moved to another address without informing the said authorities . Thus , the court found that the applicant had wilfully made himself unavailable to participate in the criminal proceedings against him and had lost the right to seek their reopening .", "The ORG , revoked in DATE , allowed trial in absentia in certain limited instances . It provided in Article CARDINAL § CARDINAL , as in force at the relevant time , the following :", "“ When it would not hamper the ascertaining of the truth , the case can be examined in the absence of the accused if :", "[ he ] was not found at the address he had given or had changed it without informing the competent authorities ;", "[ he ] was duly summoned and had not indicated a good cause for his failure to appear . ”", "When an accused was tried in absentia , there was a statutory requirement that he be represented by an ex officio counsel ( LAW ) of the ORG ) .", "Until DATE NORP law did not provide for the reopening of criminal cases heard in absentia . Thereafter reopening became possible in cases where the convicted person was unaware of the criminal proceedings against him or her and had submitted a request for a reopening within DATE of learning of the conviction ( Article CARDINALa of the ORG ) . The request was examined by ORG ( Article CARDINAL of the ORG ) , which could quash the conviction and either order a rehearing of the case ( LAW ORG ) or discontinue or suspend the criminal proceedings ( LAW ORG ) .", "The NORP courts’ prevailing practice has been summarised in the ORG ’s judgment in the case of GPE v. GPE ( no . CARDINAL , § § CARDINAL , DATE ) .", "In further judgments , ORG stated that a convicted person can not claim not to have been aware of the criminal proceedings against him if he had been charged with the offence in question in the course of the preliminary investigation and had had a restriction placed on him not to leave his place of residence without the authorisation of the public prosecutor ’s office ( решение № CARDINAL от CARDINAL г. по ORG № CARDINAL г. , LOC ; решение № CARDINAL от CARDINAL.CARDINAL.CARDINAL г. по ORG № CARDINAL г. , LOC ) . Moreover , it considered that it was irrelevant whether in such instances the convicted person was actually seeking to evade justice or had simply moved to another address without having duly informed the competent authorities where he could be summoned ( решение № CARDINAL от CARDINAL г. по ORG № ORG г. , II н.о. на ВКС ) .", "The new Code of Criminal Procedure DATE provides for the reopening of criminal cases heard in absentia in cases where the convicted person was unaware of the criminal proceedings against him or her , including of the conviction , and had submitted a request for a reopening of the case within DATE of learning of the conviction ( LAW ) .", "In the first reported case under the new rule , ORG restated its understanding that the possibility for reopening of criminal cases heard in absentia aimed to restore the right of the convicted person to participate personally in the criminal proceedings , which he or she had previously been denied for reasons outside his or her control . In particular , its aim was not to be of benefit to convicted persons who had known of the criminal proceedings against them , but had belatedly learnt of their conviction because they had absconded or had avoided participating in the court proceedings ( решение № CARDINAL от CARDINAL г. по ORG № CARDINAL г. , I н.о. на ВКС ) ." ]

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[ "6" ]

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[ "The applicant , a NORP citizen born in DATE , is on an early retirement pension and lives in GPE , GPE .", "The facts of the case , as submitted by the parties , may be summarised as follows :", "A.", "On DATE the applicant ’s insurance company refused the applicant ’s request for compensation for an occupational injury ( a rash ) . The company considered that his rash was neither an occupational illness nor a substantial aggravation of another illness within the meaning of the CARDINAL LAW ( tapaturmavakuutuslaki DATE , lag om olycksfallsförsäkring ) .", "In his appeal to ORG ( tapaturmalautakunta , olycksfallsnämnden ) on DATE the applicant required that the decision of the insurance company be overturned and that his rash be compensated as an occupational illness .", "ORG requested the insurance company to provide it with the relevant documents and an opinion . In its opinion the insurance company simply suggested that the appeal be dismissed on the grounds mentioned in the company ’s decision . Without obtaining further evidence or making the opinion available to the applicant , ORG gave a decision on the matter on DATE , dismissing the applicant ’s appeal . The grounds for the decision summarized section CARDINAL of LAW ( ammattitautiasetus CARDINAL/CARDINAL , yrkessjukdomsförordning ) which explains when an illness can be considered as an occupational one . It was further noted in the decision that the applicant ’s work had no causal connection with his rash and that therefore the rash was not an occupational illness . Nor had the work of the applicant aggravated his long - term chronic rash caused by an illness . It was noted in the decision that the insurance company had proposed that the appeal be dismissed .", "On DATE the applicant appealed to ORG ( vakuutusoikeus , försäkringsdomstolen ) repeating his claim . He argued that his rash had appeared when he had started working for the storehouse in DATE and that it had always got worse when he had returned to work after a period of sick leave . According to the documents , no further evidence had been attached to the appeal .", "ORG requested an opinion from the insurance company . In its opinion the insurance company merely stated that there was no reason to overturn the appealed decision . Without obtaining further evidence or making the opinion available to the applicant , ORG gave a decision on the matter on DATE , dismissing the appeal on the grounds mentioned in the decision of ORG . It was indicated in the decision that an opinion had been acquired from the insurance company .", "On DATE ORG ( korkein oikeus , högsta domstolen ) refused the applicant leave to appeal .", "B. Relevant domestic law and practice", "According to section CARDINAL of LAW , the appeal bodies in cases concerning accident insurance are ORG , ORG and ORG . The members of ORG , which is the appeal body of first instance , include a full - time president , CARDINAL vice - presidents , CARDINAL lawyers and CARDINAL doctors and QUANTITY persons representing the labour market organisations . ORG is a special appeal body designed to deal with cases concerning accident insurance . According to section CARDINAL of the Decree on ORG ( asetus tapaturmalautakunnasta CARDINAL/CARDINAL , förordning om olycksfallsnämnden ) , the rules of procedure in civil cases are applied to the ORG ’s procedure .", "An appeal from a decision given by ORG is made to ORG which is a special court for the consideration of cases concerning social security . According to ORG ( laki vakuutusoikeudesta CARDINAL , lag om försäkringsdomstolen ) , the rules of procedure of the ordinary courts are applied to ORG , save for certain exceptions .", "An appeal from a decision given by ORG can be made to ORG , inter alia , in cases where ORG has given a ruling on the right to compensation for an injury , illness or death . An appeal to ORG is subject to leave to appeal granted by ORG in accordance with LAW , section CARDINAL , of the Code of Judicial Procedure ( oikeudenkäymiskaari , rättegångsbalken ) .", "Leave to appeal may be granted if it is necessary for the application of law in similar cases or for the uniformity of case - law to bring the case before ORG , or if there are special grounds for this due to a procedural or other fault that requires the reversal or nullification of a judgment , or if there are other weighty grounds for granting leave to appeal .", "ORG and the ORG apply mainly the principles derived from the rules of procedure of the courts of appeal . As in force at the relevant time , and insofar as the relevant for issues in the present case , LAW provided as follows . According to LAW , sections CARDINAL , the opposing party shall be heard in appeal courts proceedings . According to LAW , section DATE , subsection CARDINAL , a copy of the observations of the opposing party are given to the applicant on request . According to LAW , section CARDINAL , the court of appeal shall request written observations from the parties when it obtains evidence on its own initiative and such evidence may affect the decision in the case , unless this is manifestly unnecessary .", "In its GPE v. GPE judgment of DATE the ORG noted that , according to what had been stated on behalf of the Government at the hearing , it was the practice both of ORG and ORG not to communicate documents of the kind in question in that case ( Series A no . CARDINAL , p. CARDINAL , § MONEY ) . Following the PERSON judgment ORG has instructed its members and staff to see to it that a party be heard ( in writing ) in respect of \" new information , unless this is clearly unnecessary \" . In respect of \" observations in reply \" a party shall always be heard ( instruction of DATE ) ." ]

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[ "The applicant was born in DATE and lives in GPE .", "The applicant was the mayor of the NORP District in GPE at the time of the events . In DATE , the Culture and Education Department of ORG , which was in charge of organising public activities and events during religious and national days , prepared a DATE programme for DATE . The draft programme was submitted to the applicant for his approval . Upon his authorisation , the organising committee started the necessary preparations .", "One of the events , which had been foreseen for DATE , was called the “ Jerusalem Night ” . The aim of this event was to protest against the genocide and oppression of NORP in GPE and GPE . The Ambassador to GPE and a journalist called PERSON were invited to the event as speakers . Furthermore , a TIME play was written for TIME . The play took the form of a conversation between a father and his son about life in GPE and the struggle of the NORP people .", "The event was announced DATE in advance and representatives of several embassies as well as important personalities living in the district were invited . The meeting hall was decorated with posters of martyrs who had given their lives for the liberation of GPE . The applicant made the opening speech .", "On DATE the applicant was taken into police custody . He was accused of disseminating propaganda in support of an armed illegal organisation , namely the ORG , and of provoking hatred and hostility on the basis of a distinction between races and regions .", "In his statement taken at the police station , the applicant stated that the “ Jerusalem Night ” was organised as part of a DATE programme during DATE and it was an activity of ORG . He explained that the posters portrayed NORP leaders who had given their lives for the liberation of GPE . The applicant denied having connections with any illegal organisation .", "On DATE the applicant was brought before the public prosecutor . During his questioning , he repeated the statements he had made at the police station . He pointed out that his speech did not contain any elements that would provoke hatred amongst those who did not wear headscarves .", "On DATE the applicant was brought before the investigating judge attached to ORG . In his statement taken by the investigating judge , the applicant explained that he supported the secular system and did not approve of the regime in GPE . He stated that he had no connections with any terrorist organisation . He was subsequently placed in detention on remand .", "In an indictment dated DATE , the public prosecutor attached to ORG initiated criminal proceedings against the applicant . It was alleged that he had disseminated propaganda in support of an armed , illegal organisation and that his actions had amounted to incitement to hatred and hostility on the basis of distinctions between races and regions . The prosecution called for the applicant to be sentenced pursuant to ORG and CARDINAL of LAW and LAW .", "NORP Before ORG , which was composed of CARDINAL judges including a military judge , the applicant contested the charges against him . He argued that the “ GPE TIME ” was part of the social activities of ORG and that he did not intend to incite people to hatred and enmity . He had emphasised the importance of unity and solidarity during his speech . He stated that he was joking when he said that the Shariah would be forcibly injected into secularists .", "On DATE the applicant was released from detention on remand pending trial .", "NORP Before delivering its judgment , ORG firstly established the status of ORG in GPE . In this respect , it relied on a report prepared by ORG ( ORG ) , dated DATE , which referred to the structure and goals of ORG . The court further based itself on another report prepared by ORG , dated DATE . In this report , it was stated that ORG had been involved in many terrorist attacks throughout GPE . Finally , the court examined a report from a book called “ the LOC File ” ( PERSON ) , which was published by ORG . In the light of all the evidence before it , the court rejected the applicant 's assertions that ORG was not active in GPE and that it was solely a national movement which operated in GPE .", "On DATE ORG concluded that the applicant had aided and abetted a terrorist organisation , by making propaganda for it and by inciting persons to hatred and enmity by discriminating against class , religion and region . It found the applicant guilty as charged and sentenced him to DATE and DATE imprisonment . The court further disbarred the applicant from public service for DATE .", "The applicant appealed to ORG . In his submissions to ORG , the applicant defended himself against the charge of incitement to hatred and enmity , contrary to LAW , and argued that he had called for unity and solidarity in his speech .", "On DATE ORG dismissed the applicant 's appeal , upholding ORG assessment of evidence and its reasons for rejecting the applicant 's defence .", "A full description of the domestic law may be found in PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) ." ]

[ "6" ]

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[ "On DATE ORG and Highways ( ORG ) expropriated plots of land belonging to the applicants in GPE in order to build a motorway . A committee of experts assessed the value of the plots of land and the relevant amount was paid to the applicants when the expropriation took place .", "Following the ORG requests for increased compensation , on DATE , ORG of First - instance awarded them additional compensation of CARDINAL NORP Liras ( GPE ) , plus interest at the statutory rate , applicable at the date of the court ’s decision , running from CARDINAL DATE , the date of the transfer of the title - deeds .", "On DATE ORG upheld the judgment of the first - instance court .", "On DATE ORG and Highways paid the applicants TRL CARDINAL ( approximately QUANTITY ( EUR ) ) , including interest .", "The relevant domestic law and practice are set out in ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV ) ." ]

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[ "The applicants are NORP nationals who were born in DATE and DATE and live in GPE . They are represented before the ORG by Mr PERSON GPE and Mr PERSON , lawyers practising in GPE .", "The first applicant is the editor of a general news magazine , PERSON , and the legal representative of the company that publishes the magazine . The second applicant is a journalist .", "In its edition of CARDINAL DATE the magazine ORG referred in its “ Prying Eye ” column to what CARDINAL of its journalists called “ a new sex scandal between an attractive aristocrat and a banker from this country ” and to the existence of pictures immortalising their encounter in a GPE hotel . The rumour was widely repeated in the media , although the persons to whom the ORG story related were not identified .", "On DATE , while on air with the presenter of the Radio CARDINAL programme “ Night Carmen ” broadcast by ORG , a journalist , GPE , referred to the rumour and identified the Duchess of PERSON and PERSON as the protagonists of “ the much - publicised romance between the aristocrat and the banker , both married with lots of children ” and gave the names of their spouses .", "In its CARDINAL DATE edition , PERSON , of which the first applicant was the editor , published an article by the second applicant concerning the alleged adulterous relationship . Photographs of the CARDINAL people concerned appeared on the magazine cover with the following caption : “ Suspected relationship between ORG and ORG ; a new scandal breaks ” . In a CARDINAL - page report that included CARDINAL photographs of the persons implicated in the alleged relationship and photographs of their families , the second applicant referred to the rumours circulating about the romance in the media and said that those involved had been identified by Radio nacioñal PERSON . A reference was also made to information that had appeared in another report .", "In the article the Duchess of M. ’s husband was described as debonair , very chubby and known to his former classmates as “ el platillo ” ( “ the saucer ” ) . Then , after giving the names of the children and the occupational activities of both PERSON , the second applicant added : “ the family ties make this saga resemble an NORP television series ” . He repeated statements made in another magazine that “ the mysterious couple ’s chosen love nest was a luxury GPE hotel where they were caught by the photographer in CARDINAL compromising situations ” , the first at the hotel entrance and the second during a romantic encounter in the hotel corridors . The report was accompanied by the words of lewd ditties containing allusions to women , not only courtesans , but also duchesses who ended up getting the “ Booty ” ( a reference to ORG ’s surname , PERSON ) and instructing LANGUAGE women in the techniques of pleasure and who chased after bankers who were only too happy to oblige , paying scant regard to their qualities since their sole interest was money – “ Booty ” ( PERSON ) .", "Furthermore , a second report by the second applicant was published in another edition of the magazine that appeared on DATE under a title that was published on the cover : “ The continuing enigma of the banker and the aristocrat : PERSON and the Duchess of PERSON deny any relationship ” . CARDINAL large photographs of the couple appeared on pages CARDINAL and DATE . An account was given of the history of the case and references made to an attempt by ORG to have copies of ORG seized and to other judicial proceedings he had brought . The magazine also explained that the compromising photographs had still not been published .", "As a result , the Duchess of M. and her husband brought a civil action before the GPE first - instance judge no . CARDINAL against the applicants and CARDINAL reporters from ORG on the basis of ORG no . CARDINAL of CARDINAL DATE on ORG , Private and Family Life and to ORG One ’s Likeness .", "In a judgment delivered on DATE after adversarial proceedings the GPE first - instance judge no . CARDINAL found in favour of the claimants in the civil action , holding that they had been the victims of an unlawful interference with their right to honour and to respect for their private life .", "He gave inter alia the following reasons in his judgment :", "“ CARDINAL : honour as an authentic personality right may be offended by acts or interferences ... that entail a loss of esteem for a person either in the eyes of fellow citizens ( the objective aspect ) or in his or her own eyes ( the subjective aspect ) . Under DATE of the current LAW honour is ranked as a fundamental right and even though section CARDINAL of the Institutional Law recognises and protects freedom of expression , that freedom is circumscribed in particular by the right to honour , to private life and to control one ’s likeness ...", "...", "CARDINAL : the information provided by ORG and PERSON magazine constitutes an intolerable interference with the PERSON honour which it is for the courts to remedy ... by setting the limits on the rights to impart information and to freedom of expression , the pillars of all democracies . In order to guide judges when they consider a defendant ’s conduct unlawful the courts have established a series of principles to assist them in the performance of the delicate task of weighing up the various competing interests or , to coin the NORP - American expression , “ balancing ” , which entails weighing in the balance the various circumstances capable of being defined in law so as to determine which of the rights in issue must prevail , the right to impart information or the right of others to respect for their honour or privacy or to control the use made of their likeness ...", "CARDINAL : ... As regards the written publication , the representatives acting for the defendants linked to the magazine PERSON cleverly retort that the reports did no more than transmit ‘ journalistic information’ to its readers , as simple ‘ scribes of ORG made by others . Although that affirmation is true because the defendants have not produced anything of substance of their own in the magazine , it nevertheless can not serve to justify their conduct as they also had a duty to seek out the truth in a diligent manner ... as the reports did not merely repeat information that had been disseminated by others but were published as items of scandal or sensation .", "CARDINAL : an important detail that concerns all the defendants is the indisputable fact that the claimants are not public figures who , as ORG has indicated , are afforded reduced protection under LAW as regards freedom to impart information on their activities that are of public interest or social utility ... The claimants have not freely chosen to become public figures and , although they have a certain social standing , it is not something they have sought , as it neither appears nor has been proved that they desired publicity ... ” .", "After dealing with the content of the reports in another paragraph of the judgment , the judge held : “ the intentionally disproportionate use of scandalous or disparaging terms and the use of innuendo about matters for which there is not the least shred of evidence constitute unlawful practices that were clearly perpetrated by the magazine PERSON ” .", "As a consequence , the judge ordered the applicants to publish the full text of the judgment in the same column of ORG , using the same typeface as that used in the report , and with an announcement of the judgment on the cover . ORG was ordered to broadcast the text of the judgment on its frequencies in the same programme . The applicants and ORG were also ordered to make reparation for the damage sustained by the victims in an amount to be assessed at the execution stage of the judgment , according to the criteria it laid down .", "The applicants appealed against that judgment to ORG , which , in a judgment of DATE , dismissed the appeal and upheld the impugned decision .", "An appeal on points of law was dismissed by ORG on DATE . It held that the courts below had correctly decided the issues and had not infringed the applicants’ constitutional right to communicate or impart true information . It added that freedom of expression was curtailed by an obligation to omit anything which could be injurious or offensive and was unnecessary in the expression of ideas , opinions or value judgements . The report in question had focused on scandal and sensationalism , without any attempt being made to articulate a healthy public opinion .", "Relying on Articles CARDINAL ( right to a fair hearing ) and CARDINAL ( right to freedom of expression and to information ) of the LAW , the applicants lodged an appeal with ORG . In a decision of DATE , which was served on the applicants on DATE , ORG dismissed the appeal as ill - founded . With regard to the complaint under LAW , it held :", "“ ... As a practical matter , as regards the so - called ‘ neutral ORG , this court stated in its judgment no . CARDINAL , which was cited by the appellants : ‘ when a media body divulges statements made by a third party that suggest that there has been an interference with the rights recognised by Article CARDINAL of LAW , that divulgation is not entitled to the protection of LAW unless the truth of the statements attributed to the third party is proved and the statements ... relate to facts or circumstances of public importance’ . Further , in judgment no . CARDINAL/CARDINAL ... , it expressly added : ‘ a report that is neutral in form or content may cease to be so if it assumes an informative character which is in practice incompatible with its function as a mere conduit for the ORG ( paragraph CARDINAL of the judgment ) . Thus ORG decision on the conflicting constitutional rights in the instant case , which is set out in its judgment upholding the judgments of the first - instance judge and FAC , is consistent with the case - law cited above . ORG ... does not contest that , as a transcription of the information broadcast by Radio nacional , the information published by PERSON enjoyed formal protection as it satisfied the requirement of truth explained in judgmentjudgment on the issue of the freedom to impart information that also led ORG to find that the report in question had overstepped the bounds within which freedom of expression may legitimately be exercised ... That finding is entirely consistent with the constitutional case - law applicable on the subject ... ”", "“ CARDINAL . The following rights shall be recognised and protected :", "( a ) the right freely to express and disseminate thoughts , ideas and opinions by word of mouth , in writing or by any other means of reproduction ;", "...", "( d ) the right freely to receive and communicate true information by any means of dissemination .", "The exercise of these rights may not be restricted by any prior censorship .", "...", "These freedoms shall be limited by respect for the rights secured in this Part , by the provisions of the implementing Acts and in particular by the right to honour and to a private life and the right to control use of one ’s likeness and to the protection of youth and children . ”" ]

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[ "The applicant was born in DATE and lives in the town of ORG , GPE .", "In DATE the applicant took part in a rescue operation on the site of the GPE nuclear disaster . As of DATE the applicant has been in receipt of social benefits in this connection .", "On DATE the ORG ( “ the FAC ” ) granted the applicant 's claim for unpaid social benefits and ordered the pension authority to make him DATE payments of MONEY ( RUR MONEY ( ORG ) ) and a CARDINAL - time payment of ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) . This judgment came into force on CARDINAL DATE . The sums due pursuant to the judgment of DATE were paid in full on CARDINAL DATE .", "By a judgment of CARDINAL DATE ORG granted the applicant 's claim for other unpaid social benefits and ordered the authority to pay him RUR CARDINAL,CARDINAL.CARDINAL ( approximately ORG CARDINAL ) DATE and also to make him a CARDINAL - time payment of ORG CARDINAL,CARDINAL ( approximately FAC ) .", "It appears that the judgment was not appealed against by the parties and came into force on DATE . The respective award was paid in full on DATE .", "On DATE ORG examined and granted the applicant 's claim to index - link the social benefits in line with the minimum DATE wage using coefficient “ CARDINAL ” . It does not appear that the parties challenged the judgment on appeal and on DATE it came into force . It appears that the authority disagreed with the judgment and refused to enforce it .", "On DATE ORG , acting by way of supervisory review upon the application of the President of ORG under the old Code of Civil Procedure which , in its relevant part , remained in force until DATE , set aside the judgment of CARDINAL DATE and remitted it to the first instance court for a fresh examination on the ground of a serious breach of substantive law .", "It appears that on CARDINAL DATE the domestic courts re - examined and eventually rejected the applicant 's claim . The respective judgment came into force on DATE .", "By a judgment of DATE ORG examined and granted the applicant 's claim for damages in respect of delays in the enforcement of the judgment of CARDINAL DATE .", "The court ordered the authority to make him a CARDINAL - time payment of FAC ( approximately EUR CARDINAL,CARDINAL ) and DATE payments of ORG MONEY ( approximately ORG CARDINAL ) starting from DATE . This judgment was rectified by the ORG decision of DATE and later approved by ORG on DATE .", "It appears that eventually the authority was ordered to pay the applicant ORG ( approximately ORG CARDINAL,CARDINAL ) one - time and RUR CARDINAL,CARDINAL.CARDINAL ( QUANTITY ) on a DATE basis .", "It appears that the judgment was re - opened and quashed on the ground of new circumstances by ORG on DATE . The court considered that the quashing of the judgment of CARDINAL DATE constituted a new relevant fact and quashed the judgment of DATE accordingly . Subsequently , the court decided to reject the applicant 's claims ." ]

[ "6" ]

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[ "The first applicant , Mr PERSON , was born in DATE and died on CARDINAL DATE . He was a NORP national . The second applicant , PERSON PERSON , is a NORP national who was born in DATE and lives in PERSON . She is the first applicant 's daughter and his sole heir . Before the ORG both applicants were represented by PERSON PERSON ORG , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , PERSON .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "On DATE the administrative authorities issued a decision expropriating a plot of land in PERSON , together with the house built on it , with a view to building a public elementary school there . At that time , the house was owned by the first applicant who lived in it together with his wife and daughter ( the second applicant ) . Even though the decision stipulated that the house was to be demolished , it appears that this never happened and that the applicants remained living there . The second applicant left the house in DATE , after she got married .", "As the first applicant and the local authorities ( who were the beneficiaries of the expropriation ) had not been able to agree on the amount of compensation that should be granted for the expropriated property , on CARDINAL DATE non - contentious proceedings for determining the said compensation were instituted before ORG . The parties to those proceedings were the first applicant , on CARDINAL side , and the local authorities , on the other . The second applicant acted as her father 's representative in those proceedings .", "On DATE ORG issued a decision awarding the first applicant CARDINAL,CARDINAL,CARDINAL.CARDINAL NORP dinars ( ORG ) in compensation . On DATE ORG dismissed the first applicant 's appeal and upheld the first - instance decision . On CARDINAL DATE ORG allowed the first applicant 's appeal on points of law ( revizija ) , quashed the lower courts ' decisions in part and remitted the case back to the first - instance court . It instructed the first - instance court to determine whether , apart from the sum already awarded on CARDINAL DATE , the first applicant should receive an additional amount of compensation .", "In the resumed proceedings , on DATE ORG issued a decision awarding the first applicant the additional amount of ORG CARDINAL . On DATE ORG allowed the first applicant 's appeal , quashed the first - instance decision and remitted the case .", "In the resumed proceedings , on CARDINAL DATE ORG dismissed the first applicant 's claim for additional compensation . On DATE ORG allowed his appeal , quashed the first - instance decision and remitted the case .", "In the fresh proceedings , ORG held a hearing on DATE . On DATE LAW entered into force . Shortly afterwards , the case was transferred to the administrative authorities , in particular the regional office of the state administration in GPE ( ORG ) .", "In the ensuing administrative proceedings , ORG held hearings on DATE , DATE , DATE and DATE and DATE .", "On DATE the ORG issued a decision dismissing the first applicant 's claim for additional compensation . On DATE the first applicant appealed .", "On DATE ORG ( ORG pravosuđa ) quashed the first - instance decision and remitted the case .", "In the resumed proceedings , ORG held hearings on DATE , DATE , DATE and DATE as well as holding in situ inspections on CARDINAL and DATE .", "The first applicant died on CARDINAL DATE . On DATE the second applicant , who until then had only acted as her father 's representative , was declared his only heir and soon afterwards took over the proceedings .", "On DATE ORG issued a decision awarding the second applicant CARDINAL,CARDINAL.CARDINAL NORP kunas ( HRK ) in compensation . The second applicant appealed to ORG .", "On DATE the second applicant and the local authorities ( the Town of Varaždin ) reached an out - of - court settlement whereby they agreed to pay her the amount of HRK CARDINAL,CARDINAL.CARDINAL in compensation for the property expropriated from her father whereas she waived any further claims against them in respect of compensation for the expropriated property and agreed to withdraw her claim and appeal in the above administrative proceedings .", "The relevant part of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL/CARDINAL , of DATE ; “ the LAW ” ) reads as follows :", "“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the individual 's rights and obligations or a criminal charge against him or her within a reasonable time , or if it is satisfied that the contested act grossly violates constitutional rights and it is completely clear that the complainant may risk serious and irreparable consequences if the constitutional court proceedings are not instituted .", "( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...", "( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged .", "The relevant provisions of LAW ( Zakon o općem upravnom postupku , ORG no . CARDINAL of CARDINAL DATE ) provide as follows :", "Section CARDINAL ( CARDINAL ) provides that in simple matters , where there is no need to undertake separate examination proceedings , an administrative authority shall give a decision and serve it on a party within DATE following the submission of an application . In all other , more complex cases , the authority shall give a decision and serve it on a party within DATE .", "Section CARDINAL ( CARDINAL ) provides that a party whose application has not been decided and served within the time - limits set out in paragraph ( CARDINAL ) may lodge an appeal ( appeal for failure to respond , žalba zbog šutnje administracije ) as if his or her application had been dismissed .", "Section CARDINAL ( CARDINAL ) provides that the decision on the appeal shall be given and served on a party as soon as possible but at the latest within DATE following the submission of the appeal .", "Section CARDINAL ( CARDINAL ) provides that the second - instance administrative authority deciding on the appeal for failure to respond shall request the first - instance authority to give reasons for its omission . If it finds that the failure to respond was attributable to the party or the reasons for such omission were otherwise justified , the second - instance authority shall order the first - instance authority to give a decision within DATE . If it finds that the omission was not justified , it shall request the case file .", "Section CARDINAL ( CARDINAL ) provides that if the case file contains sufficient information , the second - instance administrative authority shall decide the case . Otherwise , it shall first hear the case and take evidence , and then give a decision . Exceptionally , if it considers that such a procedure would save time and costs , it shall order the first - instance authority to hear the case and take evidence within a specified time - limit , whereupon it shall decide the case itself . Such a decision shall be final .", "The relevant provisions of LAW ( Zakon o upravnim sporovima , ORG nos . CARDINAL/CARDINAL , DATE and CARDINAL ) provide as follows :", "Section CARDINAL ( CARDINAL ) provides that if the appellate administrative authority fails to give a decision on a party 's appeal against a first - instance decision within DATE , and fails to do so upon a repeated request within a further period of DATE , the party may bring an action in ORG ( action for failure to respond , tužba zbog šutnje administracije ) , as if his or her appeal had been dismissed .", "Section CARDINAL ( CARDINAL ) provides that when the first - instance administrative authority fails to give a decision against which no appeal lies , the party may directly bring an action in ORG .", "Section CARDINAL ( CARDINAL ) provides that , in matters where the right of appeal exists , if a first - instance administrative authority fails to give a decision on a party 's application within DATE , the party may submit his or her application to the appellate administrative authority . Against the latter authority 's decision the party may bring an action in ORG , and if the authority fails to give a decision , the party may bring an administrative action under the conditions set out in paragraph CARDINAL .", "Section CARDINAL ( CARDINAL ) provides that when ORG , following the action for failure to respond , finds for the plaintiff , it shall either instruct the respondent administrative authority as to how to decide the case on points of law , or shall itself rule on the application ( acting as a court of full jurisdiction under paragraph CARDINAL of section CARDINAL ) .", "Section CARDINAL ( CARDINAL ) provides that , in the execution of the judgment rendered under LAW ( CARDINAL ) , the administrative authority shall issue its decision immediately but at the latest within DATE . Otherwise , a party may by a special submission request it to do so . If the authority does not issue a decision within DATE following that request , a party may apply to ORG .", "Section CARDINAL ( CARDINAL ) provides that if such an application is made , the ORG shall first ask the administrative authority to give reasons for its omission . The authority shall reply immediately but at the latest within DATE . If the authority fails to do so , or if the reasons given do not justify the failure to decide , the ORG shall give a decision which will substitute the decision of the administrative authority ." ]

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[ "The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .", "Since DATE the applicant lived as a tenant in a ORG - owned semidetached house in GPE in GPE ( ” GPE ” ) . The house ’s former owner had left the GPE in DATE and the house was subsequently seized and transferred into public property in DATE . On DATE the GPE ’s parliament ( ORG ) passed a law that allowed the purchase of ORG - owned buildings . On DATE the applicant acquired the house for the sum of GPE Marks CARDINAL . He was entered as the owner into the land register ( Grundbuch ) on CARDINAL DATE . On CARDINAL DATE the former owner requested the house ’s restitution under ORG ( PERSON über die PERSON hereinafter called LAW ) .", "On DATE ORG ( Amt zur Regelung Offener Vermögensfragen ) ordered the real estate ’s restitution according to LAW ( see “ Relevant domestic law and practice ” below ) . It stated that the house had been acquired after the key date ( PERSON ) of DATE and should not have been authorised under PERSON .", "In return for the restitution the Land of GPE was obliged to reimburse the applicant the purchase price of GPE Marks CARDINAL , converted into DEM CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) . On DATE ORG for ORG ( PERSON Vermögensfragen ) rejected the applicant ’s objection . On DATE ORG confirmed those decisions , refusing the applicant leave to appeal on points of law .", "Section CARDINAL § CARDINAL of LAW was amended by the second LAW ( Zweites Vermögensrechtsänderungsgesetz ) of DATE . It introduced exceptions to the key date regulation , thus allowing the new owners in certain cases to keep their property even if they had acquired it after DATE ( see “ Relevant domestic law and practice ” below ) .", "The applicant then lodged a complaint against the refusal of leave to appeal on points of law with ORG . He held the opinion that the old version of section CARDINAL § CARDINAL infringed his right of property , as it did not contain any exceptions to the key date and thus led to expropriation . Moreover , he submitted that the key date regulation was discriminatory within the meaning of LAW . Therefore , he demanded that the new version of section CARDINAL § CARDINAL of LAW be applied to his case , in particular since the court proceedings were still pending .", "On DATE ORG granted the applicant leave to appeal on points of law . On DATE it rejected the applicant ’s appeal on points of law . Having recourse to LAW travaux préparatoires , it interpreted the second LAW as applying only to proceedings which had not yet been terminated by final administrative decision ( PERSON ) . It stated that this interpretation alone guaranteed the speedy handling of cases of outstanding property issues as intended by the legislator . It furthermore pointed out that the latter had opted for a compromise between the interests of the former and new owners by choosing the final administrative decision instead of the final court decision as a criterion .", "The court therefore applied the old version of section CARDINAL § CARDINAL and found that it did not violate the applicant ’s right of property . It held that the restitution of the real estate had not been an expropriation within the meaning of LAW of LAW , because all it did was to balance the competing private interests of the former and the new owners . Therefore , the impugned provision of LAW was a determination of the subject matter of the right to property and its limitations within the meaning of LAW , sentence CARDINAL , of LAW ( Inhalts- PERSON ) . The court recalled that LAW aimed at creating a socially acceptable balance between the interests of the former owners who had been expropriated contrary to the rule of law , on the one hand , and the new owners which had acquired ownership rights in good faith , on the other hand . The court pointed out that LAW in fact favoured those new owners by excluding restitution , but only if they had acquired the property rights before DATE . On that date PERSON , President of ORG ( PERSON ) had resigned . The court stressed that the legislator had decided that in the light of those political events the purchaser of real estate could have no longer had a legitimate expectation that the acquired property rights would remain guaranteed or unaffected . The court held that for those reasons the key date regulation of LAW CARDINAL § CARDINAL complied with the requirements of LAW , particularly in the light of the legislature ’s wide margin of appreciation . Lastly , the court stated that this regulation did not violate the prohibition of discrimination under LAW .", "The applicant then lodged a constitutional complaint on DATE .", "On DATE ORG held in a pilot judgment that the key date regulation set in section CARDINAL § CARDINAL of LAW did not violate Articles CARDINAL and CARDINAL of LAW ( see “ Relevant domestic law and practice ” below ) .", "On DATE ORG refused to admit the applicant ’s complaint . It confirmed the reasoning of ORG , holding that in the light of the aforementioned pilot judgment of DATE , restitution based on the key date regulation did not violate Articles CARDINAL and CARDINAL of LAW . Furthermore , the court did not find it arbitrary that ORG had applied the old version of section CARDINAL § CARDINAL of LAW .", "On DATE the Land of Berlin made it known that ORG had ordered that compensation for cases such as the present one should be provided by ORG ( Entschädigungsfonds ) which , however , had not yet been established at that time .", "On DATE the applicant lodged his application with the ORG .", "On DATE the Land of GPE reimbursed the purchase price amounting to DEM CARDINAL,CARDINAL ( ORG CARDINAL,CARDINAL ) . The applicant then brought an action against ORG for the payment of interest on arrears .", "On DATE ORG rejected the applicant ’s claim , refusing him leave to appeal on points of law . On DATE ORG rejected the applicant ’s complaint against the refusal of leave to appeal on points of law .", "The applicant did not lodge a constitutional complaint against that decision with ORG .", "Article CARDINAL", "“ ( CARDINAL ) All persons shall be equal before the law .", "... ”", "Article CARDINAL", "“ ( CARDINAL ) Property and the right of inheritance shall be guaranteed . Their subject matter and limits shall be defined by the laws .", "( CARDINAL ) Property entails obligations . Its use shall also serve the public good .", "( CARDINAL ) Expropriation shall only be permissible in the public interest . It may only be ordered by or pursuant to a law that determines the nature and extent of compensation . Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected . In case of dispute respecting the amount of compensation , recourse may be had to the ordinary courts . ”", "“ ORG is furthermore excluded if individuals , religious communities ( ORG ) or foundations for public utility ( gemeinnützige ORG ) acquired in good faith ownership or rights of user in rem over property assets . This does not apply to plots of land and buildings if the legal transaction which resulted in the acquisition took place after DATE and should not have been authorised pursuant to section QUANTITY of the Regulation of the Registration of Claims for Property Assests ( GPE ) . “", "“ ORG is furthermore excluded if individuals , religious communities or foundations for public utility acquired in good faith ownership or rights of user in rem over property assets . This does not apply to plots of land and buildings if the legal transaction , which resulted in the acquisition , took place after DATE without the consent of the former owner , unless", "an application for the acquisition was made in writing or was established on record ( aktenkundig angebahnt ) before DATE", "the acquisition took place pursuant to LAW", "the acquirer made considerable investments that increased the property ’s value or maintained its substance . ”", "This amendment was introduced in the light of the fact that many of the new owners had already applied for the acquisition of real estate before DATE , but had not been able to complete the legal transaction , because the GPE authorities were unable to process those applications in time .", "In its judgment ORG found that the key date regulation in section CARDINAL § CARDINAL of LAW and the restitution of property thereunder did not violate Articles CARDINAL and CARDINAL of LAW . It recalled that the legislator had had to balance the interests of the former owners requesting restitution and the interests of the new owners requesting protection of their acquired rights . It stressed that the legislator had had a wide margin of appreciation when determining that balance . While LAW actually favoured the new owners who had acquired the property in good faith , it had been justified to introduce a key date in order to distinguish between those who had exercised their property rights already for a certain time and those who had done so for only a short period . ORG found that the resignation of PERSON as the President of ORG on DATE had been an adequate point in time to make that distinction .", "The court also noted that the GPE had already made clear in section CARDINAL of the Regulation of the Registration of Claims for Property Assets of DATE that the authorisation procedure had to be renewed ( wiederaufgreifen ) in cases of acquisitions after CARDINAL DATE . Hence the new owners in those cases could not have reasonably expected to remain proprietors and their legitimate expectation of remaining proprietors ( GPE ) did not deserve protection .", "Section CARDINAL § CARDINAL of the Regulation of the Registration of Claims for Property Assets of DATE held that that the authorisation for the purchase of real estate should be denied if the legal transaction concerned real estate that had been put , inter alia , under public administration and if the former owner did not consent to the purchase .", "Section CARDINAL § CARDINAL stated that pending procedures for the authorisation of purchase of real estate had to be stayed until it was established whether they concerned cases of outstanding property issues . Cases of outstanding property issues were defined , inter alia , as those cases in which real estate had been transferred into public property after it had been put under public administration by an escrow .", "The same applied to cases in which former owners had lodged claims , inter alia , for restitution . The authorisation could however be granted if the former owner consented to the purchase or if the former owner did not apply for restitution until DATE .", "If the authorisation had already been granted , section CARDINAL § CARDINAL provided the following : At the former owner ’s request , the authorisation procedure had to be renewed if the acquisition had taken place after DATE and if it should not have been authorised pursuant to section QUANTITY ." ]

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[ "NORP The applicant party was based in GPE , a constituency of GPE .", "On DATE the applicant party was registered with ORG of GPE as a “ Mordovian ORG - the Presidential Party of GPE ” ( NORP общественно-политическая организация республики ORG PERSON GPE ) .", "On DATE ORG adopted a new ORG общественных объединениях DATE “ LAW ” ) which came into force on DATE . Article CARDINAL of ORG required public associations registered before DATE to ensure that their articles of association complied with LAW and to renew their registration by DATE .", "On DATE the applicant party applied to ORG of GPE to renew its registration . It presented its ORG which contained the following provisions :", "“ CARDINAL . The party ’s objectives", "The party ’s aims are :", "- assisting in the formation of a free democratic society in GPE and GPE ;", "- strengthening GPE ’s unity ;", "- fighting against the separatism of GPE ;", "- enhancing the separation of the executive , legislative and judicial powers ;", "- creating a strong executive power headed by the directly elected President of GPE , integrated in the executive power of GPE ;", "- building a highly developed market economy ;", "- striving to achieve the individual ’s social protection .", "In order to meet these objectives the party :", "CARDINAL.CARDINAL.CARDINAL . participates in presidential , parliamentary and local elections in GPE by selecting and nominating candidates and assisting in their electoral campaigns .", "ORG . carries out programmes and initiatives directed at professional training , provides assistance to members of parliament and party members in the fields of economy , law , administration , mass media and the arts to support the preparation and running of electoral campaigns .", "CARDINAL.CARDINAL.CARDINAL . NORP develops a scheme to select a list of candidates and to establish the liability to the party of its members of parliament .", "NORP holds the preliminary election of candidates for elections .", "NORP supports the party groups in parliament .", "ORG . assists individuals , public and private organisations , research and educational bodies in their activities concurring with the party ’s aims . ”", "On DATE the Minister of Justice of GPE refused to renew the applicant party ’s registration with reference to LAW and to LAW on Becoming an ORG ( ORG PERSON О приобретении общественным объединением регионального ( республиканского ) статуса ORG ) . The decision stated that the applicant party had failed to create branches in CARDINAL of the districts and cities of GPE to qualify for the title “ All - NORP ” . Furthermore , it stated that the applicant party ’s ORG did not comply with the requirement to include among its objectives participation in the political life of society and in elections .", "On DATE the applicant party filed its objections with ORG of GPE . It maintained that the requirement to establish branches contained in LAW of LAW applied exclusively to international , all - NORP or inter - regional public associations . It also contended that its ORG provided for the applicant party ’s participation in the political life of society and in elections .", "On DATE the applicant party filed a new application for the renewal of its registration with ORG of GPE . The newly submitted ORG contained the following statements :", "“ CARDINAL . The main objective of the party is participation in the political life of society through influencing and generating the ORG political will , participation in elections to the ORG authorities and local government by nominating candidates and organising their electoral campaign , and taking part in the setting - up and activities of the said bodies . ”", "On DATE the Deputy Minister of Justice of GPE informed the applicant that it had missed the deadline for renewal of its registration .", "In DATE ORG of GPE applied to the GPE ORG of GPE for the dissolution of the applicant party on the ground that it had failed to reregister . The applicant party filed a counter - claim in which it challenged the refusal to renew its registration and sought an order requiring ORG to register it .", "On DATE the GPE ORG of GPE dismissed the request for dissolution . It held that it was sufficiently clear from the applicant party ’s ORG that it intended to engage in activities amounting to “ participation in the political life of society ” in accordance with LAW . The court also found that the requirement to establish branches applied only to all - NORP , inter - regional and international public associations . It declared the refusal to renew the registration of the applicant party unlawful and ordered ORG of GPE to renew the registration .", "NORP The Minister of Justice of GPE appealed .", "On DATE ORG acting as an appeal instance quashed the judgment of DATE and substituted its own decision . It found that the applicant party had failed to declare expressly its “ participation in the political life of society ” as a statutory objective . It rejected the finding made by the first - instance court that the activities listed in Article CARDINAL.CARDINAL.CARDINAL of the applicant party ’s ORG could qualify as “ participation in the political life of society ” for the purposes of ORG . The court found the refusal to renew the registration of the applicant party lawful and , in accordance with LAW , ordered its dissolution . This decision became final on DATE .", "On DATE , after communication of the case to the respondent Government by the ORG , the acting President of ORG brought on his own motion an application for supervisory review of the decision of DATE .", "On DATE the ORG of ORG granted the application by quashing the decision of DATE and upholding the judgment of the GPE ORG of GPE dated DATE . The latter judgment declaring the refusal to renew the registration unlawful and requiring ORG of GPE to register ORG of GPE entered into force .", "On DATE ORG of GPE in respect of GPE sought a court order in respect of the enforcement of the judgment of CARDINAL DATE . It claimed that , following legislative changes , it could not register ORG of GPE pursuant to the judgment . Firstly , on CARDINAL DATE the competence to register legal persons had been transferred to the tax authorities . Secondly , the PERSON on Political Parties of DATE changed the requirements for establishing political parties , and the application for registration of the applicant party had not taken account of these requirements . In particular , under the new law no regional political parties could be created and existing regional parties were deprived of their current status .", "On DATE the GPE ORG of GPE examined the request and terminated the execution of the judgment of CARDINAL DATE . The court accepted that both reasons prevented the party ’s registration pursuant to the judgment . It also took into account that the applicant ’s president , PERSON , had consented to the termination of the enforcement proceedings in view of the legislative changes .", "The Federal Law on Public Associations , No . CARDINAL-FZ of CARDINAL DATE , provided in so far as relevant as follows :", "“ The articles of public associations registered before the entry into force of this Federal Law shall be amended in compliance with the said Federal Law [ ... ] .", "State re - registration of public associations registered before the entry into force of this Federal Law shall be carried out before DATE . ”", "“ A political public association is a public association whose articles of association must provide for participation in the political life of society through influencing and generating the ORG political will , participation in elections to the ORG bodies and local government by nominating candidates and organising their electoral campaign , and taking part in the setting - up and activities of the said bodies . ”", "The Federal Law on Political Parties , No . CARDINAL of DATE contains the following provision :", "“ ... all interregional , regional and local political associations shall cease to enjoy the status of a political association and shall continue to function as interregional , regional and local public associations ... ”" ]

[ "11" ]

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[ "The applicant was born in DATE and lives in GPE .", "On DATE the applicant and CARDINAL other persons ( PERSON . and PERSON ) sent a notice to the head of PERSON town administration of their intention to stage a picket in front of ORG . The picket was to take place CARDINAL between TIME The declared purpose of the picket was “ to attract public attention to violations of the human right of access to a court ” .", "On DATE the head of ORG of the NORP town administration acknowledged receipt of the notice . He noted that , should the picket cause any inconvenience , such as blocking access to the court - house or impairing its normal functioning , the administration would have to intervene .", "On DATE the head of the ORG public security police ordered that the police should maintain public order and traffic safety during the picket .", "On DATE the applicant and others held the picket . They distributed press clippings and leaflets about Mr GPE , the President of ORG , who had allegedly been involved in corruption scandals , and collected signatures for his dismissal .", "On DATE Mr PERSON , the first deputy president of ORG , sent the following letter to the head of the PERSON - Issetskiy police department of PERSON :", "“ With the consent of the PERSON town administration , a group of citizens comprising PERSON . , PERSON and PERSON , held a picket in front of the building of ORG ...", "The picket notice indicated that the purpose of the picket was ‘ to attract public attention to violations of the human right of access to a ORG .", "As the subsequent events demonstrated , the picket organisers misled the officials of the PERSON town administration as to the real purposes of their action .", "Instead of drawing public attention to the problems of judicial protection and violations of human rights , as it was indicated in the picket notice DATE if they believed that such problems existed – which would be hard to contradict because the said problems exist in reality , for DATE the picket participants distributed printed leaflets and materials of a slanderous and insulting nature which targeted the president of ORG personally .", "The information contained in the extract from the ORG newspaper was DATE . It had been checked by ORG and ORG and found to be slanderous , of which the picket participants , in particular PERSON . and PERSON , were perfectly aware .", "The above stated begs the conclusion that the picket organisers deliberately and maliciously changed the nature of the action and in that way misled the public whom , according to the picket notice , they merely intended to acquaint with the state of judicial protection of human rights .", "They have committed thereby an administrative offence by violating section CARDINAL of the decree of the Presidium of ORG of DATE , as amended by the Presidential decree of CARDINAL DATE , and , pursuant to section CARDINAL of that decree , they are administratively liable under LAW ...", "Accordingly , I ask you to institute administrative proceedings against PERSON . , Mr GPE and Ms M. in accordance with LAW ( CARDINAL ) of the said LAW , prepare a report on an administrative offence and decide on the issue of their legal responsibility for that breach of law . You are requested to inform me of the decision taken . ”", "On DATE an official of the NORP - Issetskiy police department of PERSON compiled a report on administrative offences committed by the applicant under LAW CARDINAL of the Code on Administrative Offences . According to the report , the applicant had given notice of the picket too late , he had distributed leaflets of a slanderous and insulting nature against the president of the regional court and he had also obstructed the passage of citizens into the court - house . Court bailiffs PERSON and PERSON were listed as eyewitnesses .", "On DATE the head of the NORP - Issetskiy police department forwarded the report and supplementary materials to the LOC of PERSON . The matter was assigned to the justice of the peace of ORG of the Verkh - Issetskiy district of GPE .", "On CARDINAL DATE the applicant challenged the judicial formation and requested that the matter be examined in a neighbouring region . He claimed that objective examination of the matter in PERSON was impossible because it had been initiated at the instigation of the high - ranking officials of the regional court . The justice dismissed his challenge , holding that under LAW there were no legal grounds to change the venue .", "On DATE the justice issued a ruling on an administrative offence ( постановление по делу об административном правонарушении ) in which she found the applicant guilty on CARDINAL counts .", "Firstly , the justice held that the applicant had breached the established procedure for organising a picket . He had sent the picket notice DATE before the picket date , whereas both the DATE ORG decree and the local ORG regulation on public assemblies established a DATE notification period .", "Secondly , the justice found the applicant to have breached public order during the picket . She relied on the following evidence :", "“ The applicant ’s guilt ... is confirmed by the report on an administrative offence dated DATE ; the statements by the witnesses PERSON and PERSON who testified in court that they worked as court bailiffs in ORG . At TIME on DATE they had gone onto the porch of ORG and seen some people with banners – among them Mr Kuznetsov holding the banner ‘ ORG – resign’ – who were standing on the porch right in front of the entrance on the top floor , blocking the passage and distributing leaflets . When they had asked them to show their identity documents and go down the stairs , they had refused but they had gone down after a police officer had approached them . Judges coming to work had told them that the picket participants had blocked access to the court . [ List of evidence showing the applicant ’s guilt continues : ] the report by the court bailiff PERSON of DATE ; the report by the police officer from the PERSON - Issetskiy police station Mr PERSON which indicated that CARDINAL DATE he had been responsible for public order during the picket in front of ORG . The picket had been organised by Mr GPE , PERSON . and PERSON , who at TIME on DATE of the picket were standing on the staircase at the entrance to ORG and thus obstructing access to the building . Following his intervention and that by the court bailiffs , they had gone down to the pavement in front of the court - house and had not subsequently interfered with the normal functioning of ORG ...", "The judge does not accept the arguments by Mr GPE ’s representative to the effect that Mr GPE did not block access to ORG , because these arguments contradict the evidence that has already been examined in court and because they can not be confirmed by the witnesses [ for the defence ] who were present at the picket from TIME , because by that time the picket participants had already descended the staircase on orders of the police officer and were no longer blocking access ...", "The photographs [ produced by the defence and ] examined in court can not prove that Mr Kuznetsov did not block access to the court - house , because they depict solely the moment when they were taken rather than the entire time during which the picket had been held ; moreover , the court does not know when the photographs were taken . ”", "Thirdly , the judge found that the picket had been conducted at variance with the aims listed in the notice :", "“ According to the notice dated DATE , the initiative group of citizens comprising PERSON . , PERSON and PERSON held a protest action against violations of ORG right to judicial protection . As [ the applicant ’s representative ] explained in court , the picket aimed at attracting public attention to the problems of judicial protection , such as refusals to accept a claim or unfair judgments . The witness PERSON stated that he had brought and distributed a newspaper describing certain instances in which ORG rights to judicial protection had been breached . At the same time , the picket participants distributed extracts from the ORG newspaper containing ORG article ‘ ORG and his LOC which in its contents did not correspond to the aims of the picket . The distribution of those extracts was not contested by the applicant ’s representative in court and also confirmed by witnesses . ”", "The judge declared the applicant guilty under LAW and CARDINAL of LAW and fined him MONEY ( RUB , MONEY ( ORG ) ) .", "On DATE the LOC of PERSON , on an appeal by the applicant , upheld the ruling of the justice of the peace , endorsing the reasons that she had given . That judgment was final as no further ordinary appeal lay against it .", "The LAW guarantees the right to freedom of peaceful assembly and the right to hold meetings , demonstrations , marches and pickets ( Article CARDINAL ) .", "The Decree of the Presidium of ORG no . CARDINAL of DATE ( in force at the material time pursuant to Presidential Decree no . CARDINAL of CARDINAL DATE ) provided that organisers of an assembly were to give written notice to the municipal authorities DATE before the planned assembly ( section CARDINAL ) . The authority was to give its response DATE before the assembly ( section CARDINAL ) . Assemblies were to be conducted in accordance with the aims listed in the notice and with respect for NORP laws and public order ( section CARDINAL ) . Individuals who breached the established procedure for organising and holding assemblies incurred liability under the laws of the GPE and GPE ( section CARDINAL) .", "Article CARDINAL § CARDINAL of the Code on Administrative Offences provides that a breach of the established procedure for organising a demonstration , meeting , procession or picket shall be punishable by a fine of CARDINAL to CARDINAL times the minimum DATE wage ( that is , RUB CARDINAL at the material time ) . Paragraph CARDINAL of that Article stipulates that a breach of the established procedure for holding a demonstration , meeting or picket shall be punishable by a fine of CARDINAL to CARDINAL times the minimum wage for organisers , or CARDINAL times the minimum wage for participants ." ]

[ "10", "11" ]

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[ "The applicants were employed as waiters at the material time . When the applicants received a tip in cash directly from a customer , the money was placed in a box called a “ tronc ” and distributed proportionately among the waiters at DATE by the “ tronc master ” .", "Initially , tips left by customers which were paid to the restaurant by way of an addition to a sum paid by cheque or credit card were dealt with by removing from the cash register a sum equivalent to the tip paid by cheque or credit card and placing it in the tronc , out of which it would be distributed at DATE in the same way as cash tips .", "In DATE , following an inspection from the tax authorities , the applicants’ employer was required to treat tips left by cheque or credit card within the “ Pay - As - You - Earn ” ( “ PAYE ” ) system . Under the ORG system an employer had to ensure that employees’ income tax and national insurance contributions were deducted from the sums paid , and that ORG national insurance contributions were paid on those sums . In the applicants’ view , the tax authorities in DATE were simply insisting that as cheque and credit card tips passed through the hands of the employer the latter was responsible for distribution and should be responsible for ensuring that tax and national insurance were properly deducted through ORG .", "Rather than distributing cash sums equivalent to those left by customers on cheque and credit card vouchers , the ORG employer included “ additional pay ” in their DATE pay slip . It would appear that the method of distribution was the same as the method hitherto applied to tronc money .", "NORP Although initially opposed , this new system was eventually agreed to by the staff . The first applicant was already a staff member at the time of the introduction of the system . The remaining applicants agreed to the system when they took up employment . The applicants submitted that the staff agreement to the new system was not intended to alter the fact that the gratuities were to be paid in full to employees .", "The cheque and credit card gratuities were the subject of deductions by the employer in respect of tax and national insurance contributions . The employer bore the charges of the credit card companies , varying at the time from PERCENT on the amount of the gratuities . When a credit card voucher was improperly completed and rejected by a credit card company , the employer wrote off the amount and , it would appear , did not seek to recover any sums distributed to waiters in respect of any gratuity included on the voucher ; it does not appear either that the employer sought to recover from the waiters any sums which it did not receive as a result of dishonoured cheques . The applicants highlighted their view that this was not a new practice , but that it applied before DATE .", "At the relevant time there was a legal requirement that various categories of workers , including waiting staff like the applicants , be paid a minimum sum as remuneration . This requirement was embodied first in LAW and then , as from DATE , in LAW DATE .", "The applicants sued their employer for breach of contract and challenged the employer ’s right to count the tips included in cheque or credit card payments as part of their statutory minimum remuneration . The applicants’ claim covered DATE and therefore straddled both of the above - mentioned Acts . In the ORG ’s view , the issue between the parties was whether the “ additional pay ” constituted money paid to them by their employer . If the ORG claim was upheld , the consequence would have been that their employer had been paying them remuneration less that the statutory minimum over DATE , in breach of contract , entitling them to substantial damages . The applicants maintained that the dispute centred on whether the “ additional pay ” constituted money paid to the applicants by their employer or , they emphasised , by their employer in respect of time worked .", "On DATE a ORG judge , Mr Justice PERSON , held on a preliminary point that tips included in cheque and credit card transactions did count against the minimum remuneration requirement . Mr Justice PERSON rejected the applicants’ submission that the tips paid in this manner were held in trust for them by the employer . In his judgment , the employer obtained the legal title to a tip paid by credit card or cheque , with the result that it became the employer ’s property .", "The applicants appealed to ORG . By the time of the hearing before ORG , the applicants had accepted that property in the cheque and credit card tips passed to their employer and no longer relied on the argument that they were to be considered beneficiaries of money held on trust for them by the employer .", "In its judgment of CARDINAL DATE , ORG dismissed the ORG appeal .", "Lord Justice PERSON observed that it was not disputed that the relevant legislation ( the Wages Councils Act DATE and LAW ) embodied the rule that what was paid by the employer and not by any other person counted as remuneration for the purpose of that legislation . For that reason , tips paid in cash to waiters or to the tronc did not count as remuneration . However , he considered that the same reasoning could not apply to tips which were built into payments made by cheque or credit card to their employer since the amounts became the latter ’s property . The employer thereafter paid an equivalent amount to the applicants . In his view , tips paid in this manner should count against the minimum remuneration requirement . Lord Justice PERSON rejected the attempts of the applicants’ counsel to interpret the applicable legislation differently . He further rejected counsel ’s argument that the applicants had a right to the cheque and credit card tips as money had and received for their use . In Lord ORG opinion , it was decisive that the employer was paying the tips with its own money even if they had been paid by the customers to the employer in the belief that the latter would pass the tips on to the waiters and on the understanding that it would do so .", "As to the issue of the ORG intention when adding the tip to the cheque or credit card payment , Lord Justice PERSON considered :", "“ This is relevant ... in deciding whether the money became the property of the employers or the waiters . But it is clear and ( in this court ) uncontroverted in this case that it became the property of the employers . Beyond that , as it seems to me , the intention of the customers has no part to play . ... ”", "Mr Justice PERSON concurred . As to the applicants’ reliance on customer intention , Mr Justice PERSON stated that the intention of the different customers could only be the subject of speculation .", "Lord Justice PERSON dissented . As to tips paid by cheque or credit card , Lord Justice PERSON accepted that the amount was paid to the employer and therefore it could not be said that the tip so paid never became the employer ’s property . However , in his opinion the intention of the customer was the same when paying a tip by credit card or cheque as when paying by cash and , in either case , the customer had no intention of giving anything to the employer . Lord Justice PERSON stated :", "“ It was paid to the employer by the customer as a gratuity with the intention that it should be passed to the staff in the same way as cash payments would be and was accepted upon that basis as was apparent from the way that it was operated . The money added to the slip was taken out of the till and added to the tronc . That being so , I do not believe that tips paid by way of cheque or credit card should be considered ‘ remuneration’ when cash tips would not be . ”", "Lord Justice PERSON further observed that there was no difference in principle between tips paid in cash and tips paid by cheque or credit card . In his opinion , the only difference was that in the latter cases the employer acted as agent for the customer and , when doing so , had to carry out its duties under the relevant tax legislation to ensure that tax was levied on the tips . However , the fact that tax on cheque and credit card tips was deducted under the PAYE system , instead of being paid by the waiters , did not affect the relationship between the customer and the employee and the intention of the customer that his tip would find its way into the hands of the employee rather than enriching the employer ’s bank account .", "On DATE the applicants applied for leave to appeal to ORG . On DATE the applicants were informed that ORG had provisionally decided that leave to appeal should be given and that the ORG employer was invited to submit objections to the ORG petition before DATE . On DATE ORG referred the matter for an oral hearing before ORG .", "On DATE the hearing was held . The ORG counsel was given the opportunity to speak to the petition for leave and to address the employer ’s written objections . The hearing lasted TIME . On DATE ORG refused leave to appeal without giving reasons .", "Section CARDINAL of the Wages Councils Act DATE provided for the establishment of wages councils by order of the Secretary of ORG in respect of those workers described in the order and their employers . Under section CARDINAL , wages councils were empowered , inter alia , to fix the rate of remuneration for any workers in relation to which they operated . Under section CARDINAL , contracts of employment providing for payment of less than the minimum remuneration prescribed by a wages council would have effect as if the contractual rate were superseded by the statutory minimum rate . A wages council was established for workers in licensed residential establishments and licensed restaurants . Minimum remuneration for those workers was laid down in the Wages ( Licensed Residential Establishment and Licensed Restaurant ) Order CARDINAL . Paragraph CARDINAL of the DATE Order specified the minimum rate to be paid for TIME work as well as the rates for overtime , TIME work , etc . Paragraph CARDINAL of the DATE Order provided that if in DATE in which a worker performed some work for his employer the total amount of gratuities from customers received by the worker was less that QUANTITY ( GBP ) , the employer had to pay the worker such sum as the amount of gratuities fell short of GBP MONEY . There had to be a written agreement between the worker and the employer to this effect . Where such an agreement existed , the worker had to be paid the appropriate amount reduced by MONEY per hour for TIME worked by him in DATE .", "Section CARDINAL of the Wages Councils Act CARDINAL defined remuneration as the amount obtained or to be obtained in cash by the worker from his employer after allowing for the worker ’s necessary expenditure , if any , in connection with his employment .", "The definition of remuneration under LAW also took as its starting - point the total amount of any money payments made by the employer to the worker . The applicants draw attention to the terms of section CARDINAL(I)(a ) , which provided :", "“ For the purposes of determining , for the purposes of this Part , the amount of remuneration paid to a time worker by an employer in respect of time worked by the employee in DATE there shall be added together -", "( a ) the total amount of any money payments made by the employer to the worker , on or before the relevant pay day , by way of remuneration in respect of time worked by him in DATE ... ”", "The applicants stressed in the above connection that they were regarded as time workers at the material time .", "The Wages Act DATE made provision for the continued existence of wages councils , although with reduced powers . Under LAW , a worker could claim as additional remuneration the difference between a statutory minimum set by a wages council and the amount he was actually paid under contract .", "Under LAW ( now re - enacted in section CARDINAL of LAW DATE ) , employers were prevented from making deductions from the wages properly payable to their employees , save in certain defined circumstances and , in particular , where the employee had given prior consent to the deduction in writing .", "In GPE v. Aceground Ltd t / a PERSON ( [ DATE ] ORG CARDINAL ) , ORG held that a restaurant owner who kept for himself a proportion of the sums paid by customers as a service charge had contravened section CARDINAL of the Wages Act DATE . Whilst it was at the restaurant owner ’s discretion how the tronc was allocated , this did not extend to permitting him to allocate some of the money to himself ." ]

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[ "14", "P1" ]

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[ "The applicants , Mr PERSON , ORG , Mr PERSON and Mr PERSON , are citizens of GPE and GPE who were born in DATE , DATE and DATE respectively and live in PERSON . They were represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG GPE ( “ the Government ” ) were represented by their Agent , ORG .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "Prior to the dissolution of the former ORG ( “ the SFRY ” ) the applicants deposited foreign currency in their bank accounts at the then ORG . In GPE , as well as in other successor GPE of the former SFRY , such savings are commonly referred to as “ old ” foreign - currency savings ( for the relevant background information see GPE v. GPE DATE . ) , no . CARDINAL , ORG CARDINAL- ... ) .", "Following several unsuccessful attempts to withdraw their funds , the applicants initiated court proceedings seeking the recovery of their entire “ old ” foreign - currency savings and accrued interest .", "By a decision of ORG of DATE , the PERSON ( the legal successor of ORG ) was ordered to pay the applicants MONEY , MONEY and MONEY together with default interest on the above amounts at the statutory rate from DATE . The judgment entered into force on DATE . On DATE the ORG issued a writ of execution ( rješenje o izvršenju ) . The execution proceedings were stayed DATE and DATE .", "On DATE the domestic ORG found a violation of LAW No . CARDINAL to the LAW arising from a failure to enforce the judgment of DATE and ordered PERSON to ensure full enforcement thereof without further delay . ORG further considered that any pecuniary damage would be compensated through payment of default interest as provided by the judgment in issue . It therefore rejected the ORG claim for compensation for pecuniary damage . The applicants did not claim compensation for non - pecuniary damage .", "On DATE the Republika Srpska took over the judgment debt , pursuant to section CARDINAL of LAW DATE .", "On DATE the Republika Srpska paid the principal debt in the amount of CARDINAL convertible marks ( BAM ) . On DATE the applicants were paid default interest in the amount of BAM CARDINAL,CARDINAL.CARDINAL .", "LAW CARDINAL ( Zakon o visini stope zatezne kamate ; published in ORG of ORG ( “ ORG RS ” ) no . CARDINAL of CARDINAL DATE ; amendments published in OG RS no . CARDINAL of CARDINAL DATE ) entered into force on DATE . It sets the rate of default interest to be paid in PERSON on outstanding amounts expressed in any currency . According to section CARDINAL of this Act , default interest is calculated on the basis of the official retail price growth rate ( stopa rasta cijena na malo ) plus another PERCENT DATE ( fiksna stopa ) . Inflation in GPE , as measured by the official retail price growth rate , was relatively slow in DATE . The relevant figures were as follows : PERCENT in DATE , PERCENT in DATE , PERCENT in DATE and PERCENT in DATE ( see the Annual Report of ORG , p. CARDINAL ) .", "As to the period before the entry into force of LAW DATE , the rate of default interest to be paid in the Republika Srpska on outstanding amounts expressed in a foreign currency is the rate applicable to overnight foreign - currency deposits ( see , for example , judgment of ORG of the Republika Srpska no . Rev-CARDINAL/CARDINAL of DATE ) . According to an official report submitted by the respondent Government , at the request of the ORG , in another case ( PERSON v. GPE , no . CARDINAL ) , the relevant figures for DATE ( when the default period started in the present case ) to DATE ( when LAW DATE entered into force ) were as follows : PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE , PERCENT in DATE and PERCENT in DATE ) .", "For other relevant law and practice see the admissibility decision in ORG , cited above ; the judgment in GPE v. GPE , no . DATE ... ; and ORG and Others v. GPE , nos . CARDINAL , CARDINAL and CARDINAL , DATE ." ]

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[ "The applicants are PERSON , who was born in DATE , PERSON , who was born in DATE , and PERSON , who was born in DATE . The applicants are NORP nationals . The first and the third applicants are married ; they are the parents of the second applicant . Prior to the deportation of the first CARDINAL applicants to GPE in DATE , the applicants lived in GPE , GPE . After that the third applicant was resettled in GPE by the ORG High Commissioner for Refugees ( ORG ) .", "The facts of the case , as submitted by the parties , may be summarised as follows .", "According to the applicants ' submission , the first applicant is a ORG interpreter . She married the third applicant in DATE . The applicants furnished the ORG with a certified copy of their marriage certificate . Their daughter , the second applicant , was born in DATE . The third applicant had lived in GPE since DATE ; he had a valid work permit .", "DATE the first applicant worked in GPE , and then from DATE she was in GPE . In DATE she returned to GPE . Her residence permit was valid until DATE .", "Since DATE the first applicant has been a follower of the Falun Gong ( also spelled as PERSON and PERSON ) movement persecuted by the NORP authorities . In DATE she went to GPE to take part in an international conference of GPE Gong . There she learnt that her name had been placed by the NORP authorities on a “ blacklist ” as an activist of the movement .", "In DATE the first applicant was interviewed at ORG in GPE . In DATE she was granted refugee status under the mandate of the ORG .", "The Government submitted that the first and second applicants had been registered by the NORP authorities as persons seeking asylum in GPE . The third applicant had never been registered as an asylum seeker ; he was in GPE on a valid work visa . The first applicant has never applied for authorisation to remain in GPE as his spouse . The Government further stated that the first and third applicants were not married and that the third applicant was not the father of the second applicant . They referred to a copy of the second applicant 's birth certificate which did not provide information about her father but simply stated : “ NORP ” . In addition , the third applicant was never registered as the second applicant 's father with the NORP immigration authorities .", "On DATE the first applicant applied to ORG of ORG in GPE ( ORG ) for asylum . The asylum request also included the second applicant , her daughter . In her request the applicant stated that she was not being sought by the authorities in GPE , that she did not follow any religion and that her relatives had not been arrested by the NORP authorities . At the same time she submitted that she could not return to GPE due to the persecution of members of GPE Gong , even though she had not played any role in the movement .", "On DATE ORG rejected her request . The decision comprised CARDINAL pages and provided a detailed explanation of the reasons for the refusal to grant refugee status . In particular , it stated that the applicant had been inconsistent in her submissions concerning the circumstances under which she had learnt that her name had been put onto the authorities ' blacklist , having provided CARDINAL different versions of the events ; that her husband , who was also a follower of the same movement , had never applied for asylum and that she had submitted her request for asylum when her permission to remain in GPE was about to expire .", "On DATE the first applicant appealed against the refusal to the GPE district court . On DATE the district court dismissed her appeal and on DATE GPE upheld the decision of the first - instance court .", "On DATE the first applicant issued an official authority form authorising a number of persons , including Ms. PERSON , to represent her in all legal proceedings .", "On DATE PERSON , on the basis of the form of DATE , authorised PERSON to represent the first applicant in all legal proceedings . It appears that the first applicant was not aware of this .", "On DATE the first applicant cancelled the authority form of DATE ( see below ) .", "On DATE the first applicant lodged a request for temporary asylum with ORG . On DATE her request was refused . The first applicant appealed against the decision to the LOC court of GPE ( “ the LOC court ” ) . On DATE the court upheld the refusal to grant temporary asylum . On CARDINAL DATE the court 's decision entered into force .", "The first applicant appealed against that decision but did not pay the court fee . On DATE the district court ordered a stay of the appeal proceedings . On DATE the first applicant had applied to the same court with a request for the time - limit for submitting an appeal to be restored . The district court scheduled a hearing for the restoration of the time - limit for DATE and summoned the first applicant to that hearing .", "On DATE the district court rejected the claim concerning reinstatement of terms for appeal against its decision of DATE . Meanwhile , on CARDINAL DATE ORG decided to deport the first applicant .", "On DATE ORG issued a decision to deport the first and second applicants from GPE , which was confirmed by ORG ( the ORG ) on DATE .", "On DATE officers of the ORG arrived at the applicant 's flat and took the first and second applicants to the airport for deportation . They were put on a plane to GPE and left GPE DATE .", "On DATE ( in the submitted documents the date was also referred to as DATE ) the third applicant appealed to the LOC court against the deportation order . On DATE the court delivered CARDINAL rulings . The first CARDINAL concerned the court 's refusal to examine the appeal as it had been lodged with a court which did not have jurisdiction ; the second one stated that the third applicant was not empowered to submit complaints on behalf of the first and second applicants .", "On DATE GPE quashed these CARDINAL rulings and instructed the court to review these complaints in a single set of proceedings .", "On DATE the third applicant left GPE .", "On DATE the third applicant asked the district court to examine his appeal against the deportation in his absence .", "On DATE ( in the submitted documents the date was also referred to as CARDINAL DATE ) the first applicant revoked the authority form issued for her representatives PERSON and PERSON and requested that all legal proceedings initiated on her behalf , including those concerning the deportation , be discontinued . The Government furnished the ORG with a certified translated copy of the request to this effect , no . DATE , dated DATE . The text of the document , which was certified by a notary in GPE , included the first applicant 's address in GPE , GPE and the following text :", "“ ... I declare that hereby I am cancelling the authority form of DATE for the representation of my interests in civil and other proceedings in courts , governmental and other institutions ...", "I request that the appellate proceedings initiated by my representatives in connection with the deportation decision of ORG and the actions taken by ORG in connection with my deportation be discontinued .", "I understand the consequences of the refusal to continue the above proceedings ... ”", "It appears that on DATE the LOC court discontinued the proceedings initiated by the third applicant and on DATE this decision became final .", "On DATE the applicants ' representative PERSON lodged the third applicant 's request dated DATE for postponement of a hearing scheduled for DATE as the third applicant had not been able to properly prepare the authority form for PERSON and PERSON as his passport had been in the process of being issued .", "On DATE , DATE , the LOC court discontinued the proceedings initiated by the third applicant , stating that the proceedings did not concern his legitimate rights . On DATE the applicant 's representatives appealed against this decision .", "On DATE ORG forwarded the applicants ' case to the LOC court to determine the right of the third applicant to appeal against the decision of DATE as he had failed to submit any documents authorising PERSON and Ms PERSON to participate in the appellate proceedings .", "It is unclear whether the third applicant was able to submit any documents authorising PERSON and PERSON to participate in the appellate proceedings and if not whether the proceedings have been discontinued .", "The applicants submitted that the first applicant 's relatives in GPE had come to the airport to meet her ; however , she and the second applicant had not come out and had not been on the list of passengers . The second applicant had later been taken by the police to the relatives ' house in GPE , GPE . It appears that the first applicant had been arrested upon arrival and released after DATE . No information concerning the time , the place of the arrest or the authority effecting it , the detention facility , its location or any other details pertaining to these events were provided to the ORG .", "The applicants further submitted that since their return to GPE the first and the second applicants had been living with their relatives . According to their submission , the first applicant 's passport had been taken away from her , she had been instructed to inform the police about her movements and put under pressure to renounce the practice of GPE Gong . The first applicant asked the third applicant not to call her because it put her relatives at risk . No details pertaining to this part of the applicants ' submission had been submitted to the ORG .", "For a summary of the relevant provisions see PERSON GPE ( no . CARDINAL , DATE ) ." ]

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