Remainder inadmissible;Violation of Art. 10;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk

The applicant was born in DATE and lives in LOC .

Since DATE the applicant has worked as a teacher in ORG no . CARDINAL for Children with Language Disorders ( “ the School ” ) . In DATE he was elected head of the school branch of the “ VOST ” - CARDINAL of the CARDINAL trade unions represented in the ORG .

On DATE the local ORG employed PERSON to serve as a director , notwithstanding opposition from some staff , in particular the VOST members .

In DATE PERSON dismissed an employee , who was a VOST member , without the consent of the VOST . Subsequently , in DATE , this employee was reinstated as a result of a court action brought on her behalf by the VOST .

On DATE PERSON refused to sign a collective agreement , signed by the VOST and the head of the second trade union present at the ORG .

On an unspecified date in DATE , a former School driver who had been dismissed by PERSON for incompetence submitted a written statement to the applicant , alleging that in DATE PERSON had ordered him to unload CARDINAL boxes of humanitarian aid intended for the School at her father ’s estate and that on many occasions she had used the school vehicle for personal purposes .

NORP In DATE the applicant in his capacity as a trade union leader made several applications to ORG ( Контрольно-ревізійне управління , a public audit service , scrutinising the use of funds by ORG - owned entities , “ the KRU ” ) , alleging that PERSON had abused her office and misused ORG and funds . In particular he stated that PERSON had appropriated CARDINAL boxes of humanitarian aid , ORG set , other video equipment and bricks from the school boundary wall which had been demolished . On several occasions the applicant also complained about the situation to ORG , the regional leader of the VOST .

NORP In response to these complaints in DATE the KRU held several inquiries into the use of the ORG funds .

In its report of DATE , the PERSON stated that there were no serious instances of mismanagement of the ORG ’s property .

The PERSON ’s report of DATE , however , revealed certain shortcomings on the part of the School administration in the handling of humanitarian aid , charity and the bricks . However , no evidence was found that any of the humanitarian aid or charity monies or any bricks had been appropriated by PERSON

NORP In DATE the applicant on behalf of the ORG branch of the VOST , PERSON U. on behalf of the Regional VOST , and PERSON N. on behalf of the local branch of ORG made a criminal complaint against PERSON to GPE ORG ( “ the ORG ” ) a criminal complaint against PERSON , referring largely to the same circumstances as in the ORG ’s complaints to the KRU . On DATE ORG dismissed this complaint for want of evidence of criminal conduct on PERSON part . On DATE a second criminal complaint was dismissed on the same ground . However , criminal proceedings were initiated into the circumstances of the disappearance of the TV set and the video equipment .

On DATE several representatives of the Regional VOST picketed the NORP ORG protesting against the alleged abuses by PERSON The participants in the picket carried placards with various slogans criticising Mrs. PERSON and her deputy PERSON , as well as their supporters within the local administration . The slogans concerning PERSON read as follows : “ PERSON and PERSON return humanitarian aid and CARDINAL bricks from the school wall to the disabled children ” ; “ Boarding school no . CARDINAL director PERSON and her clique of ORG persecutors [ should be submitted ] to court ” ; and “ PERSON and PERSON , sticky hands off the disabled children of Boarding school no . CARDINAL ” .

In DATE PERSON brought a private prosecution against the applicant . She complained , in particular , that in his letters to the KRU and the Prosecutor ’s Office the applicant had falsely accused her of abuse of office and misappropriation of public funds and that he had organised and participated in the picket of CARDINAL DATE , during which the demonstrators displayed offensive placards . PERSON further concluded that the applicant ’s actions fell within the ambit of LAW ( defamation in print ) and § CARDINAL ( false accusation of serious crimes ) and LAW of DATE in force at the material time .

On DATE a judge of the NORP ORG found that the applicant ’s conduct vis - à - vis Mrs P. fell within the ambit of LAW ( simple defamation ) and LAW , and initiated criminal proceedings against the applicant . The judge further ordered that the applicant be placed under an undertaking not to abscond .

In the course of the investigation , the charges against the applicant were re - qualified from LAW .

On DATE ORG notified the applicant of his indictment under LAW and LAW .

On DATE the investigation prepared a final bill of indictment under these provisions and gave the applicant access to the case file before its transfer for court proceedings .

On DATE the Lychakivsky ORG held the first hearing in the applicant ’s case .

In DATE the applicant ’s case was transferred to the Shevchenkivsky ORG ( “ the ORG ” ) .

On DATE ORG found the applicant guilty of an offence under LAW as charged and dropped charges under LAW as redundant . It sentenced him to DATE imprisonment suspended for DATE and to a fine of CARDINAL NORP hryvnas ( ORG ) . The court also allowed PERSON civil claim in part and ordered the applicant to pay her ORG CARDINAL,CARDINAL in non - pecuniary damages and UAH CARDINAL in legal fees .

In its judgment the court established that in numerous letters signed by the applicant , PERSON had been baselessly accused of misappropriation of public funds . The court also found that the applicant had initiated and participated in the picketing of CARDINAL DATE , referring to various pieces of evidence , including submissions by several ORG employees that they had seen him during the picket holding a slogan .

The applicant appealed against the judgment of DATE . He alleged in particular that the prosecution had failed to prove that he had intentionally disseminated falsehoods . Furthermore , no attention had been accorded to the fact that he had acted in his official capacity as a local NORP leader , empowered by the union members to inform the authorities about PERSON official misconduct and that according to the findings of the LAW and the law - enforcement authorities his accusations had not been entirely baseless . The applicant further denied any involvement in the picketing , referring to his absence on the photographs of the picket made by the plaintiff as well as to a doctor ’s certificate concerning his inpatient treatment until DATE . He also alleged that the case could not be considered under § CARDINAL of Article CARDINAL of LAW , as pursuant to the decision of DATE criminal charges filed by PERSON under this provision had been re - qualified as charges under § CARDINAL of Article CARDINAL .

On DATE ORG heard the case in the applicant ’s absence and upheld the judgment of DATE . It found , in particular , that the applicant ’s guilt , including in respect of participation in the picketing , had been proved by numerous sources of evidence . In particular , several ORG employees attested to having seen the applicant holding a slogan during the picketing and his doctor stated that his treatment had not precluded him from leaving the hospital LOC .

The applicant filed CARDINAL cassation appeals , which were dismissed due to his failure to follow formalities envisaged by law . On DATE a judge of ORG declared the applicant ’s twelfth appeal in cassation , in which he raised essentially the same arguments as in his appeal , admissible .

On DATE ORG upheld the previous judgments .

The text of LAW read 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 ....

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 :

“ Insult [ ORG ] , namely the intentional humiliation of the honour and dignity of a person expressed in an indecent form shall be punishable by ... ”

Following a process of legislative reform , GPE of DATE no longer classifies defamation and insult as criminal offences .

The text of LAW ( governing the private prosecution proceedings , as in force before DATE ) may be found in the judgment of CARDINAL DATE in the case of GPE v. GPE ( no . CARDINAL , § CARDINAL ) .


Anatoly Kovler;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in DATE and lives in GPE .

On DATE the applicant brought proceedings against a private company for breach of his patent rights .

By a judgment of DATE the ORG of GPE ( “ the ORG ” ) dismissed his claim .

On DATE ORG ( “ the appeal court ” ) upheld the above judgment on appeal .

On DATE the applicant instituted another set of proceedings against CARDINAL private companies for breach of his patent rights .

The first hearing was scheduled by ORG for DATE . However , the first hearing and the next QUANTITY hearings did not take place because the judge was involved in different proceedings or was on vacation , or due to the respondents’ failure to appear . In the meantime the court sent inquiries to various ORG agencies for information about the respondents’ place of registration .

At the hearing of DATE the applicant requested to change the names of the respondents , and the court repeatedly sent inquiries for information about their place of incorporation .

The next QUANTITY hearings were cancelled due to the respondent ’s default in appearance and because of the judge ’s involvement in different proceedings .

At the hearing of DATE , following lack of information about the respondents’ exact whereabouts , the court suggested that the applicant notify them himself based on the information available to him .

At the hearing of CARDINAL DATE the applicant relinquished his claims against CARDINAL of the respondents and asked the court to invite a third party to join the proceedings .

On DATE the applicant motioned to replace the initial respondents with a new set of CARDINAL companies and specified his claims . On DATE he relinquished his claims against CARDINAL of the respondents .

The next QUANTITY hearings were cancelled as the judge was involved in different proceedings .

The hearing of DATE was postponed to allow a respondent to study the case .

The hearing of DATE did not take place as the court did not have information about due notification of the respondents .

The next CARDINAL hearings took place as scheduled .

On DATE the court accepted the applicant ’s relinquishment of his claim against CARDINAL respondents and severed his claims against CARDINAL other respondents into a separate case to avoid delay in the proceedings . By a judgment of DATE ORG dismissed his claims against the remaining respondent .

On DATE the applicant filed preliminary grounds of appeal and specified that he would submit reasoned grounds of appeal upon receipt of the reasoned judgment . On DATE ORG left the appeal without consideration for failure to substantiate it and suggested that the applicant remedy this defect until DATE .

NORP The applicant submitted copies of his complaints concerning failure of ORG to produce the final text of the judgment of DATE to the LOC prosecutor ’s office of DATE , to the appeal court of DATE and DATE and to the Judicial Qualifications Board of DATE . According to the applicant , in DATE and DATE he came to see the judge in his case , inquiring about the date of filing of the final text of the judgment at the registry .

The applicant submitted a copy of the cover of the case file with a handwritten note by a member of the court ’s registry according to which he had received a copy of the judgment on DATE .

On DATE the applicant submitted reasoned grounds of appeal of the judgment of DATE . The heading of the document includes a mention that the final text of the judgment had been obtained by the claimant on DATE .

On DATE ORG returned the applicant ’s appeal as submitted outside the procedural time - limit . This decision was set aside by the appeal court on DATE . The court did not give any reasons for its decision .

On DATE ORG upheld the judgment of DATE on appeal .

Article CARDINAL of the Code of Civil Procedure of GPE ( in force since DATE ) provides that drafting of the final reasoned text of the judgment may be postponed for no longer than DATE after termination of the proceedings in the case .


David Thór Björgvinsson;Giorgio Malinverni;Guido Raimondi

NORP The applicant was born in DATE and lives in GPE .

On an unspecified date in DATE ORG and LANGUAGE ( PERSON ) ( “ the General Directorate ” ) decided to partially expropriate the applicant ’s land located in the PERSON district of GPE . The applicant only found out about this expropriation in DATE .

On DATE the applicant brought a civil action before ORG for additional expropriation compensation .

On DATE the title to the property was transferred to ORG .

On DATE ORG awarded the applicant MONEY ( TRL ) as additional compensation , plus interest at the statutory rate .

On DATE ORG upheld the first - instance court ’s judgment .

The applicant subsequently initiated execution proceedings before ORG to obtain her additional compensation .

On DATE the applicant received a partial payment of CARDINAL,CARDINAL,CARDINAL.CARDINAL NORP liras ( TRY ) .

On DATE the applicant brought a case before ORG in respect of ORG outstanding debt and the interest rate that should be applied to that amount .

On DATE ORG held that ORG had an outstanding debt of TRY CARDINAL,CARDINAL.CARDINAL , payable with an interest rate of PERCENT running from DATE .

On DATE ORG appealed the judgment of ORG . On DATE ORG upheld that judgment .

On DATE ORG paid the applicant TRY ORG to discharge its outstanding debt , together with interest .

The relevant domestic law and practice are set out in the cases of ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV ) ; Aka v. GPE ( judgment of DATE , Reports CARDINAL-VI ) ; GPE and Others v. GPE ( no . CARDINAL , § § DATE , DATE ) ; GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) ; ORG and GPE v. GPE , no . CARDINAL , § CARDINAL , ECHR DATE ...


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE .

The applicant is a practising lawyer who specialises , inter alia , in sports law . She distributed a leaflet containing her curriculum vitae , which mentioned her career as an athlete in the national team of GPE and that she had won several international tournaments . Also , the applicant listed in the leaflet her fees for a first legal consultation , depending on the value in dispute , in matters concerning private litigation and , depending on the duration of the consultation , in matters concerning family law , labour law and criminal law . Her highest fee was MONEY ( ORG ) . At the bottom of the list , she put an asterisked footnote that the highest fee for a first consultation permitted under the applicable law , then ORG ) , was DEM CARDINAL . The latter fee was therefore higher than any of the fees the applicant had listed .

Another lawyer who practised in the same town as the applicant lodged an application for interim measures , and as a result ORG provisionally ordered , in a judgment of DATE , the applicant to refrain from referring to her former sports career in her advertising and from listing her fees for first legal consultations on matters of family and labour law with the above - mentioned footnote . An appeal by the applicant was dismissed by ORG on DATE .

In the main proceedings , by judgment of DATE , ORG repeated the above order and included an order to refrain from listing in the footnote to the leaflet the fees for all first legal consultations , subject to a fine of MONEY ( ORG ) for non - observance of the order . It based the claimant ’s request for an injunction ( Unterlassungsanspruch ) on DATE LAW in conjunction with section DATE of LAW ( see relevant domestic law section ) . ORG reasoned that lawyers were only allowed to use factual information whose form and content was connected with the profession in their advertising . It reasoned that the reference to her former sports career lacked any such connection with her profession as a lawyer .

As to the list of her legal fees containing the asterisked footnote , it noted that the applicant had made a comparison between her fees for a first legal consultation and the fees permitted under the applicable law . Ordinary citizens however would not be aware that the applicable law gave lawyers the discretion to charge a fee for a first consultation ranging CARDINAL of that fee and the full amount , and that the fees varied according to the value in dispute . After comparing the applicant ’s fees with the amount mentioned in the footnote , an ordinary citizen would assume that any other lawyer might charge LAW for a first legal consultation , whereas the maximum fee the applicant charged was DEM CARDINAL . Therefore , the leaflet might give the impression that the applicant ’s fees were normally lower than the fees of those lawyers who used the full discretion permitted under the applicable law . ORG noted however that this was not the case , pointing out that some of the applicant ’s fees for lower values in dispute were considerably higher than the fees permitted under the applicable law . It also pointed out that the footnote referred to a fee of DEM CARDINAL without mentioning that this was the full fee for consultations only for disputes with a value above DEM CARDINAL,CARDINAL . Therefore , ordinary clients could be misled into assuming that the fee of ORG CARDINAL applied to all values in dispute and that the applicant ’s fees were normally lower than the fees permitted under the applicable law . Therefore , the list with the footnote had to be considered “ misleading advertising ” within the meaning of CARDINAL of LAW .

On DATE , ORG dismissed an appeal lodged by the applicant . It reasoned that , contrary to the applicant ’s submission , she had not generally been prohibited from mentioning her fees in her advertising . It was the specific form of the advertisement in conjunction with the footnote that had been regarded as misleading by ORG .

On DATE ORG partly quashed the judgments of ORG of DATE and of ORG of DATE in so far as they concerned the prohibition on referring to the applicant ’s sports career in the leaflet . It took the view that , because the applicant partly specialised in legal disputes concerning sports , the reference did have a direct connection to her profession . Therefore , the prohibition violated the applicant ’s freedom to choose a profession under LAW . With regard to the prohibition on listing her fees in the asterisked footnote , ORG refused to admit the constitutional complaint for adjudication . It found that LAW included advertising for professional services , and that the professions were allowed to advertise as long as they provided factual information which was not misleading . It was not objectionable from a constitutional point of view that the domestic courts had regarded the list with the asterisked footnote as misleading and that they had interpreted that list in context and from the perspective of an ordinary citizen . By using the footnote , the applicant had made a comparison between her “ prices ” and the highest fees permitted under the applicable law . It could not be regarded as erroneous that the domestic courts had found that an ordinary citizen ( who would not make complicated calculations ) would assume by mistake that the applicant was normally less expensive . LAW protected not only other competitors , but also the general public , from unfair competition . It was not decisive that there had not been malpractice on the part of the applicant .

The applicant received the decision of ORG on DATE .

Relevant provisions of LAW ( PERSON gegen den unlauteren PERSON ) :

“ Any person who , in the course of business activity and for purposes of competition , commits acts contrary to honest practices may be enjoined from performing these acts and held liable for damages . ”

“ Any person who , in the course of business activity and for purposes of competition , makes misleading statements concerning business matters , in particular concerning the nature , the origin , or the manner of manufacture , or the pricing of individual goods or commercial services or of the offer as a whole , concerning price lists , the manner or the source of acquisition of goods , concerning the possession of awards , concerning the occasion or purpose of sale , or concerning the size of the available stock , may be enjoined from making such statements . ”

Relevant provision of LAW ( Bundesrechtsanwalts - ordnung ) :

“ A lawyer is only permitted to advertise his / her services in as far as the advertising in question provides factual information concerning the form and the nature of the professional services and as long as it is not aimed at soliciting specific instructions or a specific brief . ”


Remainder inadmissible;No violation of Art. 6-1 or 5-1;No violation of Art. 7

Javier Borrego Borrego;Margarita Tsatsa-Nikolovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

The applicant was born in DATE . When he lodged his application , he was detained in GPE , GPE .

In DATE the applicant , a national of GPE of NORP origin , entered GPE , where he legally resided until DATE . He then returned to GPE , which forms part of the city of PERSON in GPE , where he was born .

On DATE the applicant was arrested when entering GPE and placed in pre - trial detention on the ground that he was strongly suspected of having committed acts of genocide .

On DATE the applicant ’s trial , on the charge of having committed genocide in the PERSON region DATE , started before ORG ( Oberlandesgericht ) acting as a court of first instance .

In the course of the proceedings ORG heard evidence from CARDINAL witnesses called by the prosecution , who had to be summoned abroad .

On DATE the applicant requested ORG to call and hear evidence from CARDINAL witnesses from GPE for the purpose of proving the fact that he had been placed in pre - trial detention in PERSON DATE and DATE and could not therefore have committed the crimes he was accused of . On DATE the applicant sought leave to summon another CARDINAL witnesses from PERSON to prove his allegation .

On DATE ORG dismissed the applicant ’s requests to summon these witnesses . Relying on LAW , second sentence , of LAW ( see paragraph CARDINAL below ) , it considered the testimony of these witnesses to be of little evidential value . CARDINAL of these witnesses had made written statements which had already been read out in court . CARDINAL of them had actually claimed to have visited the applicant in prison . Having regard to the evidence already taken , the court could exclude the possibility that the testimony of the witnesses named by the applicant , if heard in person , might influence the court ’s assessment of the evidence . It pointed out that CARDINAL witnesses who had already been heard in court , including CARDINAL journalists who had not been victims of the crimes the applicant was accused of , had seen the applicant in different places outside prison during the time he claimed to have been detained . The documents submitted by the applicant in relation to the beginning and end of his detention in PERSON did not warrant a different conclusion , as they had obviously been signed by a person whom the applicant knew well .

On DATE the applicant requested the court to call CARDINAL witnesses from PERSON in order to prove that he had been detained between CARDINAL May and CARDINAL DATE . He also requested an inspection of the scene of the crime ( PERSON ) in PERSON or , alternatively , that a topographical map be drawn up in order to prove that the ORG statements concerning his purported acts in PERSON were untrustworthy .

On DATE ORG rejected the applicant ’s requests . As regards the refusal to summon the CARDINAL witnesses named , the court , again relying on LAW , found that the testimony of these witnesses would be of little evidential value . Having heard the evidence given by other witnesses , it was satisfied that the applicant had not been detained at the material time . It further considered an inspection of the scene of the crime or the drawing - up of a topographical map thereof to be unobtainable evidence ( unerreichbare ORG ) within the meaning of LAW of LAW ( see paragraph CARDINAL below ) , which it therefore did not have to accept .

In its judgment of DATE , ORG convicted the applicant on CARDINAL counts of genocide ( Article CARDINALa nos . CARDINAL and CARDINAL of LAW see paragraph DATE below ) and for the murder of CARDINAL people in CARDINAL case , CARDINAL people in another case , and CARDINAL person in a third case . In the remaining cases , he was convicted on several counts of dangerous assault and deprivation of liberty . It sentenced the applicant to life imprisonment and stated that his guilt was of a particular gravity ( see paragraph CARDINAL below ) .

The court found that the applicant had set up a paramilitary group , with whom he had participated in the ethnic cleansing ordered by the NORP political leaders and the NORP military in the PERSON region . He had in particular participated in the arrest , detention , assault and ill - treatment of male NORP of CARDINAL villages in GPE at DATE and DATE . He had killed several inhabitants of these villages . He had in particular shot DATE inhabitants of the village of PERSON – women and disabled and elderly people – in DATE . Subsequently , the applicant , together with the paramilitary group he had led , had chased CARDINAL men from their home village and had ordered them to be ill - treated and CARDINAL of them to be shot . A seventh injured person had died from being burnt with the corpses of the CARDINAL people shot . In DATE the applicant had killed a prisoner , who was being ill - treated by soldiers in the PERSON prison , with a wooden truncheon in order to demonstrate a new method of ill - treatment and killing .

The court stated that it had jurisdiction over the case pursuant to LAW CARDINAL of LAW ( see paragraph DATE below ) . There was a legitimate link for criminal prosecution in GPE , as this was in accordance with GPE ’s military and humanitarian missions in GPE and the applicant had resided in GPE for DATE and had been arrested there . Furthermore , agreeing with the findings of an expert in public international law , the court found that the NORP courts were not debarred under public international law from trying the case . In particular , neither LAW ) , nor LAW for the former GPE ( ICTY Statute ) ( see paragraphs DATE below ) excluded the jurisdiction of NORP courts over acts of genocide committed outside GPE by a foreigner against foreigners . The court considered that this view was confirmed by the fact that ORG for the former GPE ( ORG ) had stated that it was not willing to take over the applicant ’s prosecution .

Furthermore , the court found that the applicant had acted with intent to commit genocide within the meaning of Article PERSON of LAW . Referring to the views expressed by several legal writers , it stated that the “ destruction of a group ” within the meaning of Article PERSON of the Criminal Code meant destruction of the group as a social unit in its distinctiveness and particularity and its feeling of belonging together ( “ ORG sozialer PERSON in ihrer GPE und Eigenart und ihrem GPE ” ) ; a biological - physical destruction was not necessary . It concluded that the applicant had therefore acted with intent to destroy the group of NORP in the north of GPE , or at least in the PERSON region .

On DATE ORG , following an appeal by the applicant on points of law and after a hearing , convicted the applicant on CARDINAL count of genocide and CARDINAL counts of murder . It sentenced him to life imprisonment and stated that his guilt was of a particular gravity .

Endorsing the reasons given by ORG , it found that NORP criminal law was applicable to the case and that the NORP courts consequently had jurisdiction over it by virtue of Article CARDINAL no . CARDINAL of LAW . It found , in particular , that no rule of public international law prohibited the applicant ’s conviction by the NORP criminal courts in accordance with the principle of universal jurisdiction ( ORG / PERSON ) enshrined in that Article . It conceded that the said principle had not been expressly laid down in LAW , despite earlier drafts of LAW in which it had been proposed to do so . However , the said Article did not prohibit persons charged with genocide from being tried by national courts other than the tribunals of the ORG in the territory of which the act was committed . Any other interpretation would not be reconcilable with the erga omnes obligation undertaken by ORG in LAW to prevent and punish genocide ( see paragraph CARDINAL below ) . The aforesaid interpretation of LAW was also confirmed by LAW , which provided for concurrent jurisdiction of the ORG and all other national courts .

NORP Moreover , ORG found that the NORP courts also had jurisdiction pursuant to LAW no . CARDINAL of LAW ( see paragraph DATE below ) .

ORG did not expressly deal with the applicant ’s complaint that ORG , in its decision of DATE , had refused to summon abroad any of the defence witnesses he had named on the basis of LAW . However , it referred in general to the submissions of ORG ( ORG ) , who had argued that the applicant ’s appeal was inadmissible in this respect , as he had failed to set out the relevant facts in sufficient detail . As regards the applicant ’s complaint that ORG , in its decision of DATE , had refused to summon CARDINAL further defence witnesses abroad , ORG considered his complaint to be inadmissible , as he had not sufficiently set out the relevant facts and had not provided sufficient reasons in his appeal . The court further referred to ORG submissions regarding the applicant ’s complaint that ORG had refused to have a topographical map drawn up . According to ORG , the applicant ’s complaint was ill - founded in this respect , especially as ORG already had a video of the relevant locality .

ORG upheld ORG finding that the applicant had intended to commit genocide within the meaning of Article PERSON of LAW , but found that his actions as a whole had to be considered as only CARDINAL count of genocide . It referred to the wording of Article CARDINAL § CARDINAL no . CARDINAL ( imposition of measures which are intended to prevent births within the group ) and no . CARDINAL ( forcible transfer of children of the group into another group ) in support of its view that genocide did not necessitate an intent to destroy a group physically , but that it was sufficient to intend its destruction as a social unit .

On DATE ORG declined to consider the applicant ’s constitutional complaint .

According to ORG , the criminal courts had not violated any provision of LAW by establishing their jurisdiction pursuant to LAW CARDINAL of the Criminal Code taken in conjunction with LAW . The principle of universal jurisdiction afforded a reasonable link to deal with subject matter arising outside the territory of GPE , while observing the duty of non - intervention ( ORG ) under public international law . The competent ORG reasoning , namely , that LAW CARDINAL of the Criminal Code taken in conjunction with LAW entitled them to examine the applicant ’s case , was not arbitrary . It could properly be reasoned that LAW , while not expressly regulating the principle of universal jurisdiction , provided that the Contracting Parties were not obliged to prosecute perpetrators of genocide , but had jurisdiction to do so . In fact , genocide was the classic subject matter to which the principle of universal jurisdiction applied . The criminal courts’ reasoning did not interfere with GPE and GPE ’s personal or territorial sovereignty , as that ORG had expressly refrained from requesting the applicant ’s extradition .

Pointing out that in the case of an admissible constitutional complaint it was entitled to examine the act complained of under all constitutional angles , ORG further found that the applicant ’s right to a fair trial as guaranteed by LAW had not been violated . There was no doubt that LAW and CARDINAL of LAW were constitutional . The legislature was not obliged to set up specific rules of procedure for certain criminal offences . The right to a fair trial did not grant the applicant a right to have certain evidence taken , such as calling witnesses who had to be summoned abroad .

In respect of the interpretation of Article PERSON of LAW , ORG found that there had been no violation of the principle that criminal law was not to be applied retroactively as guaranteed by LAW . It stated that the way in which ORG and ORG had construed the notion of “ intent to destroy ” in the said LAW was foreseeable . Moreover , the interpretation conformed to that of the prohibition of genocide in public international law – in the light of which Article PERSON of LAW had to be construed – by the competent tribunals , several scholars and as reflected in the practice of ORG , as expressed , inter alia , in LAW of ORG ( see paragraph CARDINAL below ) .

On DATE the ORG declared inadmissible a request by the applicant to reopen the proceedings . The fact that one of the witnesses who had been examined by ORG , and who was the only person claiming to have been an eyewitness to the applicant murdering CARDINAL people in PERSON , was suspected of perjury did not warrant a reopening . Even assuming that the said witness had invented the allegations against the applicant , the latter would still have to be sentenced to life imprisonment for genocide and on CARDINAL counts of murder .

On DATE ( decision served on DATE ) ORG decided that the applicant ’s request to reopen the proceedings was admissible in so far as it concerned the murder of CARDINAL people in PERSON . It pointed out , however , that , even assuming that the applicant ’s conviction on CARDINAL counts of murder was not upheld , his conviction for genocide and on CARDINAL counts of murder , and therefore his life sentence , including the finding that his guilt was of a particular gravity , would prevail .

In a constitutional complaint of CARDINAL DATE , the applicant claimed that the decisions of ORG and ORG concerning the reopening of the proceedings violated his right to liberty as guaranteed by LAW . He argued that they had erred in their finding that , in the proceedings to have the case reopened , the question whether the applicant ’s guilt was of a particular gravity did not have to be assessed anew .

On DATE ORG refused to admit the applicant ’s constitutional complaint .

On DATE the ORG decided to reopen the proceedings in respect of the applicant ’s conviction for shooting CARDINAL people in PERSON . It found that the only person claiming to have been an eyewitness to these murders was guilty of perjury at least in respect of some other statements . Therefore , it could not rule out the possibility that the judges then adjudicating the case would have acquitted the applicant on that charge if they had known that some statements by this witness had been false .

In so far as the applicant ’s request to reopen the proceedings was granted , ORG discontinued the proceedings . It argued that the sentence to be expected by the applicant , if he was again found guilty of having murdered CARDINAL people in PERSON , was not significantly greater than the sentence which had already been imposed upon him with binding effect for genocide . Consequently , the judgment of ORG of DATE remained final regarding the applicant ’s conviction for genocide and on CARDINAL counts of murder , including the court ’s finding that his guilt was of a particular gravity .

The relevant provisions of LAW , in their versions in force at the material time , on the jurisdiction of NORP courts , the crime of genocide and the gravity of a defendant ’s guilt provided as follows :

“ NORP criminal law shall further apply , regardless of the law applicable at the place of their commission , to the following acts committed abroad :

NORP genocide ( Article PERSON ) ;

“ CARDINAL . ...

NORP criminal law shall apply to other offences committed abroad if the act is punishable at the place of its commission or if the place of its commission is not subject to enforcement of criminal law and if the perpetrator

( CARDINAL ) was a foreigner at the time of the act , was found to be in GPE and , although the law on extradition would permit extradition for such an act , is not extradited because a request for extradition is not made , is rejected or the extradition is not enforceable . ”

“ CARDINAL . Whoever , acting with the intent to destroy , in whole or in part , a national , racial , religious or ethnical group as such ,

( CARDINAL ) NORP kills members of the group ,

( CARDINAL ) causes serious bodily or mental harm ... to members of the group ,

( CARDINAL ) NORP places the group in living conditions capable of bringing about their physical destruction in whole or in part ,

( CARDINAL ) imposes measures which are intended to prevent births within the group ,

( CARDINAL ) NORP forcibly transfers children of the group into another group ,

shall be punished with life imprisonment .

Article PERSON of LAW was inserted into LAW by LAW DATE on GPE ’s accession to LAW and came into force in DATE . Article CARDINAL no . CARDINAL and Article CARDINAL of the Criminal Code ceased to be effective on DATE when the Code on ORG against International Law ( Völkerstrafgesetzbuch ) came into force . Pursuant to LAW , it applies to criminal offences against international law such as genocide ( see LAW ) even when the offence was committed abroad and bears no relation to GPE .

The applicant is the first person to be convicted of genocide by NORP courts under Article PERSON since the incorporation of that LAW into LAW . At the time the applicant committed his acts in DATE , a majority of scholars took the view that genocidal “ intent to destroy a group ” under Article PERSON of LAW had to be aimed at the physical - biological destruction of the protected group ( see , for example , PERSON in ORG GPE , CARDINALth edition , GPE DATE , Article CARDINAL , § § CARDINAL with further references ) . However , a considerable number of scholars were of the opinion that the notion of destruction of a group as such , in its literal meaning , was wider than a physical - biological extermination and also encompassed the destruction of a group as a social unit ( see , in particular , PERSON , PERSON GPE DATE . DATE und die PERSON , DATE ) , p. CARDINAL , and PERSON in ORG , CARDINALth edition , GPE , GPE DATE , LAW , § § DATE , CARDINAL and DATE ) .

Under Article CARDINALa § CARDINAL of LAW , a sentence to life imprisonment may only be suspended on probation if , in particular , DATE of the sentence have been served and the particular gravity of the defendant ’s guilt ( besondere PERSON der PERSON ) does not warrant the continued execution of the sentence .

Pursuant to LAW , an application to adduce evidence may be rejected only under the conditions set out in that Article . It may be dismissed , inter alia , if the evidence is unobtainable ( unerreichbar ) .

Article CARDINAL § CARDINAL , second sentence , of LAW lays down special conditions for rejecting an application to examine a witness who would have to be summoned abroad . These conditions are less strict than those for rejecting an application to hear evidence from a witness who can be summoned in GPE . It is sufficient that the court , in the proper exercise of its discretion , deems the examination of the witness not to be necessary for establishing the truth .

NORP The relevant provision of LAW , which came into force for GPE on CARDINAL DATE , provides :

“ In the present Convention , genocide means any of the following acts committed with intent to destroy , in whole or in part , a national , ethnical , racial or religious group , as such :

( a ) Killing members of the group ;

( b ) Causing serious bodily or mental harm to members of the group ;

( c ) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part ;

( d ) Imposing measures intended to prevent births within the group ;

( e ) Forcibly transferring children of the group to another group . ”

In its ORG CARDINAL/CARDINAL ( no . A / RES/CARDINAL/CARDINAL ) of DATE concerning the situation in GPE in DATE , ORG stated :

“ Gravely concerned about the deterioration of the situation in GPE owing to intensified aggressive acts by the NORP and LOC forces to acquire more territories by force , characterized by a consistent pattern of gross and systematic violations of human rights , a burgeoning refugee population resulting from mass expulsions of defenceless civilians from their homes and the existence in NORP and LOC controlled areas of concentration camps and detention centres , in pursuit of the abhorrent policy of “ ethnic cleansing ” , which is a form of genocide , ... ”

In the case of Prosecutor v. ORG , IT-CARDINAL - CARDINAL-T , judgment of CARDINAL DATE , § § DATE , ORG of ORG for the former GPE ( ORG ) , expressly diverging from the wider interpretation of the notion of “ intent to destroy ” by ORG and ORG in its judgment of DATE in the present case , found as follows with regard to LAW :

“ CARDINAL . Several recent declarations and decisions , however , have interpreted the intent to destroy ... so as to encompass evidence relating to acts that involved cultural and other non - physical forms of group destruction .

NORP In DATE , ORG labelled ethnic cleansing as a form of genocide . ...

ORG of Germany said in DATE that

the statutory definition of genocide defends a supra - individual object of legal protection , i.e. the social existence of the group ... the intent to destroy the group ... extends beyond physical and biological extermination ... The text of the law does not therefore compel the interpretation that the culprit ’s intent must be to exterminate physically at least a substantial number of the members of the group . ...

ORG is aware that it must interpret the Convention with due regard for the principle of nullum crimen sine lege . It therefore recognises that , despite recent developments , customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group . Hence , an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide . ORG however points out that where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well , attacks which may legitimately be considered as evidence of an intent to physically destroy the group . ”

The Trial Chamber ’s judgment was upheld in this respect by the judgment of DATE rendered by ORG of the ORG , IT-CARDINAL - CARDINAL-A , which found :

“ CARDINAL . LAW , and customary international law in general , prohibit only the physical or biological destruction of a human group . ... ORG expressly acknowledged this limitation , and eschewed any broader definition . ... ”

... The fact that the forcible transfer does not constitute in and of itself a genocidal act does not preclude a ORG from relying on it as evidence of the intentions of members of ORG . The genocidal intent may be inferred , among other facts , from evidence of ‘ other culpable acts systematically directed against the same group’ . ”

Similarly , in the case of Prosecutor v. PERSON and Others ( ITCARDINAL-T , judgment of DATE , § CARDINAL ) , which concerned the killing of CARDINAL NORP in order to expel the NORP population from a village , the ORG found :

“ Persecution is CARDINAL step away from genocide – the most abhorrent crime against humanity DATE for in genocide , the persecutory intent is pushed to its utmost limits through the pursuit of the physical annihilation of the group or of members of the group . In the crime of genocide the criminal intent is to destroy the group or its members ; in the crime of persecution the criminal intent is instead to forcibly discriminate against a group or members thereof by grossly and systematically violating their fundamental human rights . In the present case , according to the Prosecution – and this is a point on which ORG agrees DATE the killing of NORP civilians was primarily aimed at expelling the group from the village , not at destroying the NORP group as such . This is therefore a case of persecution , not of genocide . ”

In its judgment of CARDINAL DATE in the case of GPE and GPE ( “ Case concerning application of FAC ” ) , ORG ( ICJ ) found under the heading of “ intent and ‘ ethnic cleansing’ ” ( at § CARDINAL ) :

“ The term ‘ ethnic PERSON has frequently been employed to refer to the events in GPE and GPE which are the subject of this case ... ORG resolution CARDINAL/CARDINAL referred in its Preamble to ‘ the abhorrent policy of “ ethnic cleansing ” , which is a form of ORG , as being carried on in GPE . ... It [ i.e. , ethnic cleansing ] can only be a form of genocide within the meaning of the LAW , if it corresponds to or falls within CARDINAL of the categories of acts prohibited by LAW . Neither the intent , as a matter of policy , to render an area ‘ ethnically homogeneous’ , nor the operations that may be carried out to implement such policy , can as such be designated as genocide : the intent that characterizes genocide is ‘ to destroy , in whole or in ORG a particular group , and deportation or displacement of the members of a group , even if effected by force , is not necessarily equivalent to destruction of that group , nor is such destruction an automatic consequence of the displacement . This is not to say that acts described as ‘ ethnic cleansing’ may never constitute genocide , if they are such as to be characterized as , for example , ‘ deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in ORG , contrary to LAW , paragraph ( c ) , of the LAW , provided such action is carried out with the necessary specific intent ( dolus specialis ) , that is to say with a view to the destruction of the group , as distinct from its removal from the region . As the ORG has observed , while ‘ there are obvious similarities between a genocidal policy and the policy commonly known as “ ethnic cleansing ” ‘ ( ORG , IT-CARDINAL - CARDINAL-T , ORG , DATE , para . CARDINAL ) , yet ‘ [ a ] clear distinction must be drawn between physical destruction and mere dissolution of a group . The expulsion of a group or part of a group does not in itself suffice for genocide.’ ... ”

According to the material available to the ORG , there have been only very few cases of national prosecution of genocide in other Convention States . There are no reported cases in which the courts of these GPE have defined the type of group destruction the perpetrator must have intended in order to be found guilty of genocide , that is , whether the notion of “ intent to destroy ” covers only physical or biological destruction or whether it also comprises destruction of a group as a social unit .

Amongst scholars , the majority have taken the view that ethnic cleansing , in the way in which it was carried out by the NORP forces in GPE in order to expel NORP and NORP from their homes , did not constitute genocide ( see , amongst many others , PERSON ORG , Genocide in GPE ORG , Cambridge DATE , pp . CARDINAL et seq . ) . However , there are also a considerable number of scholars who have suggested that these acts did amount to genocide ( see , inter alia , PERSON , Genocide : ORG , HOUJIL DATE ) , p. CARDINAL , and PERSON , PERSON i m internationalen und nationalen ORG , GPE am ORG , pp . CARDINAL - CARDINAL ; PERSON , differentiating in GPE , CARDINALst edition , ORG DATE , pp . CARDINAL , CARDINAL et seq . ) .

The relevant provisions of LAW read :

“ The Contracting Parties confirm that genocide , whether committed in time of peace or in time of war , is a crime under international law which they undertake to prevent and to punish . ”

“ Persons charged with genocide or any of the other acts enumerated in LAW shall be tried by a competent tribunal of the State in the territory of which the act was committed , or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction . ”

The relevant provision of LAW provides :

“ CARDINAL . ORG and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former GPE since DATE .

The International Tribunal shall have primacy over national courts . At any stage of the procedure , ORG may formally request national courts to defer to the competence of ORG in accordance with the present LAW . ”

The Appeals Chamber of the ORG , in its decision of CARDINAL DATE on the defence motion for interlocutory appeal on jurisdiction in the case of Prosecutor v. PERSON ( no . IT-CARDINAL - CARDINAL ) , stated that “ universal jurisdiction [ is ] nowadays acknowledged in the case of international crimes ” ( § DATE ) .

Likewise , ORG of the ORG , in its judgment of DATE in Prosecutor v. PERSON ( no . ITCARDINAL/CARDINAL T ) , found that [ it ] has been held that international crimes being universally condemned wherever they occur , every ORG has the right to prosecute and punish the authors of such crimes . As stated in general terms by ORG in PERSON , and echoed by a GPE court in Demjanjuk , “ it is the universal character of the crimes in question ... which vests in every ORG the authority to try and punish those who participated in their commission ” ( § CARDINAL ) .

According to the information and material before the ORG , including material submitted by the ORG which has not been contested by the applicant , the statutory provisions of MONEY ORG authorise the prosecution of genocide in circumstances comparable to those in issue in the present case .

In many ORG , the prosecution of genocide is subject to the principle of universal jurisdiction , that is , jurisdiction for crimes committed outside the ORG ’s territory by non - nationals against non - nationals of that ORG and which are not directed against the ORG ’s own national interests , at least if the defendant was found to be present on its territory ( for example GPE , GPE , GPE ( DATE ) , GPE , GPE , GPE , GPE , the GPE ( since DATE ) , GPE , GPE , GPE and GPE ) . At the time of the applicant ’s trial , numerous other GPE had authorised the prosecution of genocide committed abroad by foreign nationals against foreigners in accordance with provisions similar to the representation principle ( stellvertretende Strafrechtspflege – compare LAW no . CARDINAL of LAW , paragraph CARDINAL above ) , for example GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ( since DATE ) . Convention States which do not provide for universal jurisdiction for genocide include , notably , GPE .

Apart from the NORP , NORP and NORP courts , it is in particular the NORP courts that have already adjudicated on charges of genocide , relying on the principle of universal jurisdiction . The NORP Audiencia Nacional , in its judgment of CARDINAL DATE in the PERSON case , held that the NORP courts had jurisdiction over the case . On the subject of the scope of LAW it stated :

“ LAW does not preclude the existence of judicial bodies with jurisdiction apart from those in the territory where the crime was committed or international tribunals . ... it would be contrary to the spirit of the LAW ... , in order to avoid the commission with impunity of such a serious crime , to consider that LAW limits the exercise of jurisdiction , excluding any jurisdiction other than those envisaged by the provision in question . The fact that the Contracting Parties have not agreed on universal jurisdiction over the crime for their respective national jurisdictions does not preclude the establishment , by a ORG which is a party to the ORG , of such jurisdiction over a crime which involves the whole world and affects the international community and indeed all of humanity directly , as stated in the LAW itself . ... Neither do the terms of LAW constitute an authorisation to exclude jurisdiction for the punishment of genocide in a ORG such as GPE , whose law establishes extraterritoriality with regard to prosecution for such crimes ... ” ( ORG , vol . CARDINAL , pp . CARDINAL et seq . , at pp . CARDINAL - CARDINAL )


Violation of Art. 5-1;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses (Convention proceedings) - claim dismissed

On DATE on a public bus in the city of GPE the applicant , born in DATE , had a dispute with a ticket inspector , who accused her of having travelled without a valid ticket . When he was about to issue a penalty fare she refused to disclose her identity and the police were consequently called . They requested that the applicant give her name and address , and since she refused , she was arrested at TIME in accordance with section CARDINAL , subsection CARDINAL , cf . section CARDINAL of ORG ( Retsplejeloven ) and brought to the police station .

From the police reports it appears that the police estimated that the applicant was DATE . Having been deprived of her personal belongings , she was put in a waiting room at TIME and after a visit to the toilet at TIME she was moved to a detention cell . On DATE at TIME the applicant revealed her identity and she was released at CARDINAL a.m.

NORP Immediately after her release , the applicant collapsed and was hospitalised for DATE diagnosed with high blood pressure .

The charge with the offence of refusing to reveal her identity was not followed up by an indictment . The outcome of the applicant 's dispute with the bus company is unknown .

On DATE the applicant complained about the detention to the Chief Constable of GPE ( Politimesteren i GPE ) . In a letter of DATE the Chief Constable provided his comments on the course of event , stating inter alia that the applicant had not been in possession of any papers which could have revealed her identity , that she appeared hysterical and refused to reveal her identity and that in the light thereof for security reasons she was placed in a detention cell . Furthermore , the Chief Constable noted that during the detention the applicant was regularly attended to and called upon through the intercommunication system but that each approach was met with screaming and continuing refusal to reveal her identity ,

On DATE the applicant claimed compensation for having been detained . The Chief Constable decided on the matter on DATE , and in so far as relevant his letter of DATE to the applicant reads as follows :

“ In connection with your previous complaint ... you received a ... letter of DATE from Chief PERSON . [ My ] reply to your complaint ... will not differ essentially from the content of [ that letter ] .

However , in view of your relatively advanced age I find reason to regret that you were not , as promised , attended to by a doctor in connection with your stay in the detention cell .

In general , I find the fact that you were taken to the police station , that you were placed in the detention cell , and that the length of your stay in the detention cell from TIME until your release the following day at TIME , totalling TIME can be ascribed substantially to your conduct and unwillingness to assist in replying to the question on which the police needed clarification .

This decision can be appealed against to ORG ...

The claim for compensation made by you as regards the deprivation of liberty will be decided by ORG , who has received a copy of this letter ” .

The applicant did not appeal to ORG against the Chief Constable 's decision , but on DATE she complained against the decision to ORG in GPE ( Statsadvokaten i Viborg ) , who refused to grant her compensation on DATE .

In accordance with section CARDINAL e of ORG on DATE the applicant appealed to ORG , who upheld the decision on DATE .

Thereafter , pursuant to section DATE a of ORG the applicant brought her claim for compensation before ORG LAW ) . The prosecution maintained that the applicant 's behaviour necessitated the arrest and the length of the detention . A court session was held on DATE , in which the applicant , represented by counsel , explained inter alia that she had refused to give her name to the ticket inspector partly because she was angry , partly because he already knew her . She alleged that the police did not question her or talk to her during the arrest , during the transportation to the police station , or after the arrival to the station . She had handed over various belongings among those , she believed , various letters from public authorities bearing her name . CARDINAL police officers were heard as witnesses on DATE . The QUANTITY police officers who made the arrest explained inter alia that the applicant twice had refused to give her name and address on their request , once after they had warned her that she would be arrested did she not state the data required . It had been difficult to get in touch with the applicant , who screamed and appeared hysterical . At the police station she was brought before the officer on duty and again she refused to reveal her identity . She had not been in possession of any identification . The officer who had been on duty on DATE explained among other things that after repeated attempts to obtain the applicant 's name and date of birth , he gave up and the applicant was thereafter placed in a waiting room , whereto he went at least once without success to ask her to disclose her personal data before he was off duty at TIME The officer who had been on duty on CARDINAL DATE as from TIME stated inter alia that several times during TIME he send a colleague down to try to get the requested data from the applicant , but they only succeeded TIME , whereupon she was released . A note of DATE from the Chief of Police in GPE was submitted , of which it appeared that the applicant 's case had been thoroughly talked over with the group of duty officers . It had been discussed in particular that the applicant had not been attended to by a doctor in connection with her placement in the detention cell , that she had been detained for many hours , and that no documentation existed to substantiate which steps had been taken during the evening , the night and TIME in order to gain knowledge of the applicant 's identity . The duty officers were ordered , in the future , to appoint at the commencement of every duty period CARDINAL among them to be responsible for the detainees .

By judgment of DATE ORG decided as follows :

“ As the [ applicant ] did not disclose her name and address to the CARDINAL [ named ] police officers , she infringed section CARDINAL of ORG , which authorises the imposition of a fine . Thus , pursuant to section CARDINAL , subsection CARDINAL of ORG the [ applicant ] could be arrested .

Also , when brought to the police station immediately after the arrest [ the applicant ] refused to reveal her name and address and consequently , she was put in a waiting room . It is unknown , which efforts were taken to identify [ the applicant ] in the period TIME and TIME during which , the DATE [ applicant ] was placed in the detention cell at least for some time , and during which according to the information available she was denied medical treatment . Having regard to the fact that [ the applicant ] was detained for breaching section CARDINAL of ORG , the police officers on duty were under an obligation continuously to make attempts to establish her identity , and to secure that the detention did not exceed a period proportionate to the cause of the detention cf . the principles set out in section CARDINAL , subsection CARDINAL and section CARDINAL , subsection CARDINAL of ORG . Under these circumstances , the court finds that there was no reason to extend the detention until the following day TIME Accordingly , [ the applicant ] is entitled to compensation in the amount of DKK CARDINAL pursuant to section CARDINAL a , subsection CARDINAL of ORG . ”

The prosecution appealed against the judgment to ORG ) , before which the applicant amended slightly her statement given before ORG in that she admitted that the police had asked her before and after the arrest to provide them with her personal data , but that she had refused because she had been angry . CARDINAL of the police officers who were heard as witnesses before ORG repeated their testimonies .

On DATE the ORG gave judgment against the applicant stating as follows :

“ Having breached section CARDINAL of ORG [ the applicant ] could be arrested pursuant to section CARDINAL , subsection CARDINAL of ORG .

During the arrest , and the subsequent detention [ the applicant ] was requested continuously to reveal her name and address , which she refused . Furthermore , she did not possess any identity papers , which could have enabled the police to determine her name and address . Finally , [ the applicant ] was released as soon as she revealed her name and address .

Under these circumstances , there is no basis for granting [ the applicant ] compensation pursuant to section DATE a , subsection CARDINAL of the administration of Justice Act .

Moreover , as no circumstances has been established , which could provide a basis for granting compensation pursuant to section DATE a , subsection CARDINAL , [ the court finds for the prosecution . ] ”

The applicant 's request of CARDINAL DATE for leave to appeal to ORG ( Højesteret ) was refused by the Leave to Appeal Board ( Procesbevillingsnævnet ) on DATE .

The relevant provisions of ORG reads as follows :

Section CARDINAL , subsection CARDINAL :

“ ORG Prosecutors shall supervise the Chief Constables ' conduct as to criminal trials , and hear appeals against decisions made by the Chief Constables as to instigation of criminal proceedings . Decisions by ORG Prosecutors can not be appealed against to ORG or to ORG ... “

“ The Minister of ORG is the chief superior of the police and exercises his powers through the National Commissioner of Police , the Commissioner of ORG and the Chief Constables ”

Section CARDINAL :

“ ... Every person has a duty to disclose his name , address and date of birth to the police upon request . Failure to do so is punishable with a fine . ”

Section CARDINAL :

NORP “ The police may arrest any person who is reasonably suspected of a criminal offence subject to public prosecution , if arrest must be deemed necessary to prevent further criminal offences , to secure the person 's presence for the time being or to prevent his association with others . ...

“ No arrest may be made if , in the nature of the case or the circumstances in general , deprivation of liberty would be a disproportionate measure . ”

Section CARDINAL

“ An arrest must be carried out as leniently as the circumstances permit . In compliance with section CARDINAL e , the police may search and examine the person affected and his clothes with a view to depriving him of belongings which can be used for violent behaviour or for his absconding , or which may cause danger to the person affected or to others . The police may temporarily seize such belongings and money that are found in the person 's possession . Otherwise , during an arrest the person affected is not subject to any limitations of his personal liberty other than those necessitated for the purpose of the arrest and for the prevention of disorder .

The police shall as soon as possible inform the person being arrested of the charge against him and the time of his arrest . It must appear from the police report that this rule have been observed ”

“ Any person who is arrested must be released as soon as the basis for the arrest ceases to exists . ”

Section CARDINAL a :

“ CARDINAL . Any person who has been arrested or held in custody as part of a criminal prosecution is entitled to compensation for the damage suffered thereby if the charges are withdrawn or the accused is acquitted ...

Even if the conditions for granting compensation under subsection CARDINAL are not satisfied , compensation may be granted if the deprivation of liberty can not be considered proportionate to the outcome of the prosecution , or if it is found unreasonable for other particular grounds .

The compensation may be reduced or refused , if the person charged has given rise to the measures himself . ”


Preliminary objection withdrawn (non-exhaustion of domestic remedies);Violation of Art. 6-1;Just satisfaction not applied

C. Russo;John Freeland;N. Valticos;R. Pekkanen

Mr PERSON resides in GPE . The facts established by the Commission pursuant to LAW CARDINAL ( article CARDINAL - CARDINAL ) of the Convention are as follows ( see paragraphs CARDINAL of its report ) :

The applicant served in the NORP from DATE to DATE , on which date he was invalided out of the service because he had become disabled as a result of CARDINAL illnesses - an ulcer and neoplasia .

Since DATE the applicant has been in receipt of an ordinary retirement pension .

On DATE he applied for an ‘ enhanced ordinary pension’ on the ground that the illnesses which had caused his disablement were ‘ due to his service’ . On DATE the applicant was examined at the GPE military hospital by ORG medico - legal board . On DATE the board concluded that the neoplasia which had caused the applicant ’s disablement was not ‘ due to his service’ .

On DATE , in its decision on the applicant ’s request , ORG granted him payment at the enhanced rate for DATE , on the ground that the ulcer he suffered from was ‘ due to his service’ , but rejected that part of his application concerning the neoplasia .

In a registered letter dated DATE the applicant appealed to ORG against this decision . The appeal was received by ORG on DATE and reached the competent division of that court on DATE , being registered under file no . DATE .

On DATE the applicant asked for his appeal to be given priority , by derogation from the chronological order principle usually applied . Following this request , on DATE , the registry of ORG asked ORG for the applicant ’s administrative file ; on DATE it again asked for this file to be forwarded .

In a note of DATE ORG announced that it was shortly to adopt an administrative measure concerning the applicant [ - an adjustment of his pension - ] and that the file would be transmitted thereafter .

The file was received by the registry of ORG on DATE . On CARDINAL DATE the applicant ’s appeal and his file were transmitted to the principal public prosecutor , who [ granting Mr PERSON ’s application of CARDINAL DATE ] on DATE decided to give the case priority .

On DATE the principal public prosecutor requested the opinion of ORG medico - legal board . He received this opinion on DATE . It confirmed that the applicant ’s neoplasia was not ‘ due to his service’ .

On the basis of this opinion , on DATE , the principal public prosecutor submitted his pleadings , calling for the appeal to be dismissed .

On DATE the applicant again asked for his case to be given priority .

On CARDINAL DATE the president of the division of ORG dealing with the case arranged for a hearing to be held before that division on DATE . However , the hearing did not take place because , following a judgment of ORG ( no . CARDINAL of CARDINAL DATE ) , ORG of ORG gained jurisdiction to hear the case , which was transferred to it on DATE .

This division heard the case at a hearing held on DATE , at the end of which it upheld the applicant ’s appeal . The text of the judgment was deposited with the registry on DATE . ...

B. The relevant domestic law

In pursuance of the provisions of Presidential Decree no . CARDINAL of DATE , state public servants are entitled to an ‘ enhanced ordinary pension’ when their employment in the public service is terminated as a result of a disability or injury attributable to the requirements of the service .

Public servants make direct contributions to the pension fund through DATE payments calculated as a fixed percentage of their wages and deducted therefrom .

The nature of the disability or injury is taken into account for the purpose of deciding which scale is to be applied in calculating the amount of pension . For professional members of the armed forces these scales range from PERCENT of the figure used as the basis for the calculation of pension , i.e. the full amount of the latest remuneration received , plus certain allowances where appropriate . Consequently , the amount of the pension granted is not directly linked to the total contributions paid into the pension fund by the person concerned . "

On CARDINAL DATE the applicant informed ORG had now paid him part of the amount in issue .


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Mark Villiger

NORP The applicant , Mr PERSON Cancio , is a NORP national who was born in DATE and lives in GPE . He is represented before ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by their agent Mr H. J. PERSON , PERSON , of ORG .

On DATE investigations in relation to contraband trade of cigarettes were instituted by ORG ( Zollfahndungsamt ) . On DATE the prosecution registered the applicant as an accused in these proceedings ; on DATE he was questioned as an accused .

On DATE the applicant and several co - accused were charged with a violation of LAW ( PERSON ) in conjunction with ORG Resolution No . CARDINAL ( DATE ) concerning the embargo against GPE and GPE ( see relevant domestic and international law below ) , with regard to a total of CARDINAL shipments of cigarettes in DATE and DATE .

On DATE ORG asked the prosecution for clarification regarding its territorial jurisdiction . On DATE the prosecution returned the file to ORG with additional submissions .

On DATE the prosecution withdrew the first indictment .

On DATE the prosecution submitted a new indictment . On DATE this indictment was served on the applicant ’s counsel . In DATE ORG ordered a translation of the indictment to be served on the applicant .

DATE the applicant ’s counsel requested CARDINAL extensions of time - limits to submit further observations , which were all granted .

On DATE ORG decided to open the main proceedings against the applicant and CARDINAL other co - accused regarding CARDINAL part of the indictment .

On DATE the prosecution and the applicant appealed this decision .

On DATE ORG dismissed the applicant ’s appeal arguing that his right to be heard before the opening of criminal proceedings was not interfered with .

On DATE ORG rejected the appeal of the prosecution for the most part .

On DATE ORG dismissed the applicant ’s motion for reconsideration .

On DATE ORG dismissed the applicant ’s appeal against the decision of ORG of DATE .

On DATE the dates of the trial were fixed for CARDINAL and DATE . On DATE of trial the proceedings against the applicant , who at that time was imprisoned in GPE , were disjointed .

On DATE ORG provisionally stayed the proceedings on request of the prosecution in view of pending criminal proceedings against the applicant in GPE pursuant to LAW paragraph CARDINAL of LAW .

On DATE the applicant lodged a constitutional complaint against the decision of ORG of DATE to open the main proceedings against him . He raised the issue of the length of the proceedings , an alleged lack of fairness of the proceedings and the infringement on the principle of double - jeopardy .

On DATE ORG declared the complaint inadmissible , finding that the impugned decision was a mere intermediate decision and thus did not constitute a suitable object of a constitutional complaint .

On DATE the Government informed the ORG that in response to the pilot judgment PERSON GPE ( no . CARDINAL/CARDINAL , DATE ) a federal LAW against Protracted Court Proceedings and Criminal Investigations had entered into force on DATE .

NORP In DATE the ORG informed the applicant in the present case and other applicants in the same position of the enactment of a new domestic remedy . The ORG referred to the case PERSON GPE ( ( dec . ) , no . CARDINAL , ECHR CARDINALIX ) and invited him to inform the ORG whether he intended to make use of the new remedy within the time - limit set by the transitional provision of that LAW ( see for details § CARDINAL et seq below ) .

NORP By letter of CARDINAL DATE the applicant informed the ORG that the domestic remedy might not apply in his particular case , as the criminal proceedings were stayed . He suggested that the ORG should invite ORG to give further explanations on the new remedy in comparison to the situation in GPE v. GPE ( dec . ) , cited above . He nevertheless requested that his application before this ORG be maintained while the proceedings according to the new remedy were pending . Lastly , he doubted that the costs for the proceedings before this ORG would be reimbursable as damages in the domestic proceedings .

“ ( CARDINAL ) A prison sentence of DATE shall be imposed on anyone who violates a statutory order ... which serves the implementation of an economic sanction imposed by ORG of ORG in accordance with LAW . ... ”

In DATE the statutory range of punishment ( Strafrahmen ) provided for in LAW ( CARDINAL ) was reduced to an imprisonment from DATE .

United Nations Security Council Resolution CARDINAL ( DATE ) of CARDINAL DATE demanded that all Member GPE should prevent the sale of all products and commodities to ORG and GPE ) , except for humanitarian causes .

With United Nations Security Council Resolution CARDINAL ( DATE ) of CARDINAL DATE the measures imposed by , inter alia , resolution CARDINAL were suspended with immediate effect .

Section QUANTITY of the Code of Criminal Procedure provides for the provisional stay of criminal proceedings in the following terms :

( CARDINAL ) Once proceedings have been instituted , the court may provisionally stay them at any stage at the request of ORG .

( CARDINAL ) If the proceedings have been provisionally terminated on account of a penalty or measure of reform and prevention which is to be expected for another offence , the proceedings may be resumed , unless barred by limitation in the meantime , within DATE after the judgment imposed for the other offence has entered into force .

( CARDINAL ) If the court has provisionally terminated the proceedings , a court order is required for their resumption . ”

The Act on Protracted Court Proceedings and Criminal Investigations ( Gesetz über den GPE bei überlangen PERSON , henceforth : LAW ) was published in LAW I , DATE , page CARDINAL et seq . - on DATE and entered into force the next day .

The LAW introduces general provisions for civil and criminal cases in sections CARDINAL to CARDINAL of LAW ( Gerichtsverfassungsgesetz , henceforth : ORG ) .

The new remedy combines an instrument to expedite the proceedings , an objection to delay ( PERSON ) , which has to be raised before the court whose proceedings are allegedly unduly delayed ( henceforth : trial court ) , with a subsequent compensation claim to be lodged at ORG ( henceforth : compensation court ) , see section CARDINAL paragraph CARDINAL and CARDINAL ORG .

According to section CARDINAL paragraph CARDINAL ORG a party to proceedings ( LOC ) who suffers a disadvantage from protracted proceedings is entitled to adequate compensation . The amount depends on the length of the individual case taking into account its difficulty and importance as well as the conduct of the parties and relevant third persons . A compensation award is not dependent on the determination of fault .

The compensation is awarded in monetary form , if other forms of compensation for lengthy proceedings are not appropiate , see section CARDINAL paragraph CARDINAL and section CARDINAL ORG . The compensation for DATE of protraction amounts to QUANTITY

A prior objection to delay before the trial court is a prerequisite for a subsequent compensation claim . The action for compensation may not be lodged with a compensation court until DATE after the objection had been raised , see section CARDINAL paragraph CARDINAL ORG . The compensation claim must at the latest be lodged within DATE of the final judicial decision of the trial court .

For protracted criminal proceedings or investigations LAW stipulates in section CARDINAL ORG special provisions , as criminal courts and the prosecution have already established a standard practice compensating for unreasonable length which this ORG considered to be in line with the requirements of Articles CARDINAL § CARDINAL and CARDINAL of the Convention ( see GPE and PERSON v. GPE , nos . CARDINAL and CARDINAL , § DATE , CARDINAL DATE ) . In criminal cases the courts may either afford compensation by declaring that a specified part of the sentence had to be considered as having already been served or they may terminate proceedings with the consent of the prosecution .

In circumstances where the criminal trial court can not compensate for the excessive length of proceedings , e.g. in cases of acquittal or discontinuance of proceedings for other reasons than length ( see PERSON v. GPE ( no . CARDINAL ) , no . CARDINAL , § CARDINAL et seq . , CARDINAL DATE ) , the provisions of section CARDINAL ORG apply ( see official motivation of the draft law : record of GPE CARDINAL/CARDINAL page CARDINAL ) and redress will be granted by monetary compensation .

Proceedings for compensation are subject to court fees . However , the plaintiff will be reimbursed according to the quota of his success in court .

The judgment of the compensation court is subject to appeal on points of law ( Revision ) only .

According to its LAW applies to pending as well as to terminated proceedings whose duration may still become or have already become the subject of a complaint with ORG .

In pending proceedings the objection to delay ( PERSON ) should be raised without delay when LAW entered into force . In these cases the objection preserves a subsequent compensation claim even for the past .

For terminated proceedings whose duration may still become or have already become the subject of a complaint with this ORG it is not necessary to raise the objection prior to filing a compensation claim . The claim based on LAW has to be lodged with the competent court on DATE at the latest .


Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , Mr PERSON , is an NORP national who lives in GPE , GPE . He is represented before the Court by Mr B. PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON .

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant was involved in a property dispute with a private person ( S. ) over a retail shop located in the LAW settlement of LOC . At the time of the dispute , the shop was in PERSON ’s possession . The applicant claimed to have bought the shop from its previous owners , who had privatised it in DATE , while PERSON argued that the privatisation process had been unlawful and that he had a lawful claim to the shop .

The applicant lodged a lawsuit seeking S. ’s eviction from the shop .

By a judgment of DATE , ORG found that the applicant had purchased the shop on DATE and was its lawful owner pursuant to the ownership certificate issued by ORG on DATE . The court further found that PERSON had unlawfully occupied the shop without the owner ’s permission . Accordingly , the court ordered PERSON to vacate the shop . PERSON appealed against that judgment .

On DATE ORG delivered a judgment dismissing PERSON appeal . ORG judgment of DATE thus became final immediately . No further appeals were filed .

According to information submitted by the Government , on CARDINAL DATE ORG enforced the judgment of DATE as upheld by ORG and PERSON was evicted from the shop by the police . By a decision of CARDINAL DATE , ORG terminated the enforcement proceedings as the judgment of DATE had been executed .

It appears from the case file that the same shop was subsequently occupied by CARDINAL other persons . On DATE the ORG delivered a judgment ordering their eviction from the shop . That judgment was enforced on DATE .

According to the applicant , however , the shop was subsequently occupied again , by other persons related to S.