The applicant was born in DATE and lived in GPE .

On DATE the applicant was arrested by the police . On DATE ORG ( Sąd Rejonowy ) decided to detain the applicant on remand in view of the reasonable suspicion that he had committed a homicide .

Subsequently , the applicant 's pre - trial detention was prolonged on several occasions , in particular at the hearing held on DATE .

On DATE ORG ( Sąd Wojewódzki ) convicted the applicant of homicide and sentenced him to DATE imprisonment .

On DATE ORG quashed the impugned judgment and remitted the case .

On DATE ORG ( PERSON ) decided to prolong the applicant 's pre - trial detention . The court gave the following reasons :

“ Prolongation of the applicant 's detention on remand is justified by the fact that the applicant has been accused of homicide . ”

On DATE ORG dismissed the applicant 's request for release . The reasons of the decision are as follows :

“ [ The applicant ] has been accused of having committed [ a homicide ] and the original reasons for keeping him in detention are still valid . ”

NORP On DATE the ORG further prolonged the applicant 's pre - trial detention . The court found that keeping the applicant in detention was necessary because he had been charged with homicide and the trial court had started the process of obtaining expert evidence .

On DATE the trial court held the first hearing . Subsequently , CARDINAL hearings were held .

On DATE and CARDINAL DATE the applicant 's pre - trial detention was prolonged as the courts considered that the necessity to secure the proper conduct of the proceedings and the severity of the anticipated penalty justified keeping him in custody .

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

The applicant submits that neither he nor his lawyer was informed about the majority of scheduled court sessions at which his detention on remand was prolonged and that he was not allowed to attend any of these sessions .

On DATE the ORG gave judgment . The court convicted the applicant and sentenced him to DATE imprisonment . The applicant appealed .

On DATE ORG ( FAC ) amended the impugned judgment . The court sentenced the applicant to DATE imprisonment . The applicant lodged a cassation appeal with ORG ( Sąd Najwyższy ) .

On DATE ORG dismissed his cassation appeal as being manifestly ill - founded .

On DATE ORG sent to the applicant , who at that time had been detained on remand in ORG , an application form and accompanying documents in reply to his letter in which he had notified his intention to lodge a complaint with ORG . The ORG 's envelope delivered to the applicant bears the stamp : ORG ( PERSON w PERSON ) and a handwritten note : censo . , PERSON ( cenzu . CARDINAL ) .

The envelope from the Chancellery of the ORG of GPE of DATE bears the same stamp as above and a handwritten note : censored , CARDINAL [ DATE ( cenzurowano , CARDINAL.CARDINAL.CARDINAL ) and an illegible signature .

NORP The applicant also submitted that his correspondence with his courtappointed lawyer had been censored by the authorities of ORG . He provided an envelope addressed to his lawyer which bears the following stamps : ORG ( PERSON w PERSON ) , a hand - written note : censored , CARDINAL [ July CARDINAL]CARDINAL ( cenzurowano , CARDINAL ) and an illegible signature . The envelope was posted on DATE . The second envelope , also addressed to his lawyer , bears the same stamp of ORG , a date : CARDINAL and an illegible signature .

The third envelope was addressed to the applicant by his lawyer . The envelope , posted on DATE , bears the following stamps : ORG PERSON GPE ) , ORG , CARDINAL , and an illegible signature .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the socalled “ preventive measures ” ( środki zapobiegawcze ) . Article CARDINAL § CARDINAL provides that the lawyer of a detained person should be informed of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand .

A more detailed rendition of the relevant domestic law provisions is set out in the ORG 's judgments in GPE v. GPE [ ORG ] , no . GPE , § CARDINAL , ORG CARDINALXI , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL and CARDINAL , CARDINAL DATE .

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) ( “ the DATE Code ” ) which entered into force on DATE . Article CARDINAL ( CARDINAL ) of the DATE Code provides that convicted persons are entitled to uncensored correspondence with the ORG authorities and with the ORG . The relevant part of LAW provides as follows :

“ Convicts ( ... ) 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 . ”

Pursuant to LAW ,

“ 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 .... ”

LAW provides that a person detained on remand has a right to communicate freely with his lawyer . A prosecutor may order the control of the detainee 's correspondence with his lawyer ; however , such measure can not be maintained longer than DATE after the detention order has been imposed .

For a more detailed rendition of the relevant domestic law provisions , see the ORG 's judgments in GPE v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE and PERSON v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE .


Violation of Art. 6-1 with regard to the right to a court;Not necessary to examine Art. 6-1 with regard to fairness;Violation of Art. 6-1 with regard to the right of access to a court;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in the city of GPE , GPE .

As of DATE the applicant ran a business in the city of GPE , GPE , keeping a part of his profit in cash .

By LAW of DATE , the bank - notes of CARDINAL and MONEY issued in DATE ceased to circulate and had to be exchanged for the notes of the same nomination issued in DATE . The Decree of the Cabinet of Ministers of the same date specified the procedure of exchange , providing , inter alia , that a special sub - commission ( hereinafter the exchange commission ) should be created within the executive committees of GPE to decide on the exchange of bank - notes . The exchange commissions were empowered to allow or refuse exchanges fully or in part , depending on the legality of the source of income being proved .

In DATE the applicant put the amount of MONEY in CARDINAL notes into an account at LOC of ORG . At the same time the applicant applied to the GPE exchange commission for an exchange of that sum . On DATE the commission ( ORG комиссии ORG народных депутатов по обмену денежных знаков ) refused to exchange the full amount because of an alleged lack of proof as to the legality of the source of income , and limited the exchange to MONEY . The remaining sum of MONEY was not compensated .

The applicant challenged that decision before the higher exchange commission of GPE . On DATE the latter upheld the decision of the GPE exchange commission .

The Government submit that , in accordance with the resolution of the Cabinet of Ministers of the GPE no . CARDINAL of DATE , which regulated the procedure for the exchange of bank - notes , this decision of CARDINAL DATE was final .

At the same time ORG checked the legality of the applicant 's business and found no irregularities .

On DATE the applicant instituted proceedings in ORG against the exchange commission for its refusal to exchange the full sum of MONEY .

On DATE ORG ( ORG городского народного суда ) rejected the claim for lack of jurisdiction .

The applicant appealed to ORG against the judgment of ORG . On DATE the former quashed the judgment of the latter and remitted the case for further consideration .

On DATE ORG ( ORG городского народного суда ) found for the applicant and ordered the executive committee of ORG to exchange all the money deposited by the applicant ( MONEY ) .

On DATE ORG ( ORG областного суда ) upheld this judgment .

On DATE the judgments of CARDINAL DATE and DATE were quashed by the ORG of ORG ( Постановление ORG областного суда ) .

On DATE ORG of ORG of GPE ( ORG ) quashed the latter judgment and upheld the judgments of DATE and DATE in the applicant 's favour . This judgment was final .

The judgment was not fully enforced for DATE . On various occasions the applicant lodged claims to have the awarded sum adjusted to the inflation rate . On DATE , DATE , CARDINAL DATE and DATE , ORG granted the claims due to the longstanding non - enforcement of the judgment in the applicant 's favour . The latter court decision increased the amount to UAH CARDINAL,CARDINAL.CARDINAL .

By letter of CARDINAL DATE , the GPE City Mayor requested ORG to intervene by lodging an appeal for supervisory review ( protest ) against the judgment of ORG of GPE given in favour of the applicant .

On DATE the Chairman of the ORG ordered the suspension of any further enforcement of the judgement until the supervisory review appeal had been considered .

On DATE the Deputy Chairman of ORG of GPE lodged a supervisory review appeal with the Plenary of ORG ( Постанова Пленуму ORG ) against the judgments in the applicant 's favour .

On DATE the Plenary allowed the appeal and quashed the said judgments , upholding the initial judgment of ORG of DATE to reject the applicant 's claim for lack of jurisdiction . The ORG decided that , since the exchange of banknotes was regulated by LAW of DATE ( paragraph CARDINAL ) which provided for the non - judicial review of the decisions of exchange commissions , the dispute was outside the courts ' jurisdiction under the legislation in force in DATE .

The GPE Mayor then requested ORG to reverse the enforcement of the quashed judgment and to recover from the applicant the money which had been already paid to him ( PERCENT of the sum originally awarded ) . According to the Government , the court did not examine that request because , under an agreement between the parties , the applicant returned the money which had been paid to him .

By a letter of CARDINAL DATE , ORG informed the applicant that it had no jurisdiction to review the decisions of the ordinary courts .

By a resolution of DATE , the proceedings on the applicant 's case were closed due to the quashing of the judgment of DATE by the Plenary of ORG .

At the material time , LAW of LAW subjected final and binding judgments to a possible supervisory review . When a final judgment was given by ORG , it could be appealed under the supervisory review procedure by the Chairman of ORG , ORG and his or her Deputies ( LAW . The judgments of the Plenary were not subject to any further review .

The supervisory review procedure was repealed in DATE .


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The applicants , PERSON and her twin daughters , are NORP nationals who were born in DATE and DATE . They were represented before the ORG by Mr J. Nyström , a lawyer practising in PERSON .

The first applicant arrived in GPE from GPE , GPE on DATE and applied for asylum on DATE . She submitted before ORG ( Migrationsverket ) that she had been subjected to an attempted female genital mutilation ( ORG ) or possibly to an initiation to the Mungiki sect by friends of her former boyfriend .

In DATE the applicant had allegedly run away from home to marry her boyfriend , with whom she had been in a relationship for DATE . The boyfriend , who belonged to the NORP sect , had taken her to see an old man who had performed some sort of ritual . She did not know if the ritual had been performed in order for them to get married or if it had been an initiation to the Mungiki group . After the ritual her boyfriend had taken her to a friend ’s home and subsequently left the house . His friends had told her that they were going to perform ORG on her . When she refused to cooperate , they had beaten and raped her . They had been interrupted by neighbours who had heard her scream , but the perpetrators had told her that she would not get away . After the incident she had returned to her family home and told her mother about the incident . Her mother had urged her to report the perpetrators , but she had been afraid to do so as the boyfriend ’s clan had great influence on the police and authorities . Instead she had moved to a friend ’s home in PERSON shortly after the incident and had subsequently left the country , due to her fear of being found by her boyfriend . She feared that she would be killed or persecuted by her boyfriend or other members of the PERSON group as she had refused ORG and had run away .

Shortly after her arrival in GPE , the applicant met a man and became pregnant . The man , who was later deported from GPE , did not want to take any responsibility for the applicant or his children .

On DATE ORG questioned the applicant ’s credibility and rejected the request for asylum . ORG noted that ORG was prohibited by law in GPE , but was still practised , inter alia , by the Mungiki sect . It further noted that women at risk of being subjected to ORG often did not receive sufficient protection . However , the applicant had stated that her mother opposed female genital mutilation , and that she had urged the applicant to report the perpetrators to the police . Furthermore , the applicant had not known the purpose of the ritual to which she had been subjected and it was therefore found unlikely to have been an initiation to the Mungiki sect . It was noted that the applicant ’s boyfriend had not searched for her , despite her claim that he knew where she was . ORG found that the applicant would be able to seek protection from the NORP authorities and her own family . According to her own information , ORG was no longer practised by her people , the NORP .

On DATE the second and third applicants were born .

The applicant appealed against the ORG ’s decision to ORG ( Migrationsdomstolen ) and added that she had given birth to CARDINAL children out of wedlock and would be regarded as a prostitute in GPE . She submitted that she was no longer in contact with her mother , and did not know how her mother would react to the applicant having children . She had travelled to GPE by plane via another NORP country , but did not know which . She had not carried a passport .

On DATE ORG rejected the applicant ’s appeal and upheld the ORG ’s decision . The court found reason to question the applicant ’s story , in particular with regard to her identity and her travel route to GPE . This affected her overall credibility . Her account of the alleged incident was considered vague . She had not known whether the alleged ritual was an initiation or a wedding ceremony , and her description of the ritual contradicted country information . The court considered that it was not likely that the applicant had been married or initiated through the alleged ritual . She was considered to have been subjected to a criminal offence performed by private actors and such criminal activity was predominantly an issue for the NORP authorities . Referring to relevant country information , the court found that the police were taking measures to control the NORP sect . The applicant had failed to demonstrate that the domestic authorities were not willing or able to protect her . It was furthermore noted that ORG was not performed by her people , and that her family opposed the tradition .

On DATE ORG ( Migrations - överdomstolen ) refused leave to appeal .

An application for asylum was also submitted on behalf of the second and third applicants . It referred to their mother ’s involvement with the Mungiki sect and stated that they were at risk of ORG if deported to GPE . It was also submitted that they would be at risk of ill - treatment as they had been born out of wedlock .

On DATE ORG rejected the second and third applicants’ request for asylum . ORG referred to its decision regarding the first applicant and found that it was not plausible that they would be at risk of ORG and ill - treatment on return to GPE .

On DATE ORG rejected the second and third ORG appeal and upheld the ORG ’s decision .

On DATE ORG refused leave to appeal .

The provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in LAW ( Utlänningslagen , GPE ) .

LAW , LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE .

According to LAW , section CARDINAL the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , membership of a particular social group , religious or political beliefs , grounds of gender , sexual orientation and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , section CARDINAL ) .

As regards the enforcement of a deportation or expulsion order , account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment . According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , section CARDINAL ) .

NORP country information ( NORP Landinfo , Report GPE : Mungiki – Abusers or abused ? , DATE ) describes the PERSON group as follows .

“ [ T]he Mungiki movement [ is ] the largest and best known of the organised armed criminal , political and religious groups in GPE , with a large following among the PERSON . PERSON operates primarily in the GPE slums , in LOC and in LOC . Although PERSON offers poor residents in slum areas protection and social services , extortion and violence tend to constitute their mode of operation . PERSON human rights violations perpetrated against civilians , adversaries and defecting members are attributed to them . The NORP authorities have not succeeded in their attempts to limit PERSON ’s influence or abuses , despite recent crack downs ... ”

The Mungiki movement is also reportedly “ encouraging , demanding and enforcing female genital mutilation practices upon girls and women in its communities ” , including partners and family members of those who have joined the movement . Members who defect are at serious risk of being killed or harassed .

In a report on female genital mutilation , ORG states that the prevalence of the practice in GPE has decreased in DATE . Throughout GPE , PERCENT of all women have been mutilated . Among PERSON , PERCENT of all women aged DATE are said to have been mutilated ( ORG , ORG . Towards the Abandonment of Female Genital Mutilation / Cutting in DATE , DATE ) .

More recently , ORG Note – GPE , DATE ) stated the following :

“ CARDINAL.CARDINAL.CARDINAL The Government of GPE has taken a clear position on the abandonment of ORG and other harmful tribal practices . It is illegal to carry out ORG on females aged DATE or younger , although no similar protection currently exists for women over DATE ...

CARDINAL.CARDINAL.CARDINAL The available evidence suggests that the ability and willingness of the authorities to protect women from the imposition of ORG is slowly increasing . The number of churches , NGOs and other organisations actively working to protect women and girls from ORG and to end the practice is also steadily increasing . However , the accessibility of such protection is variable , geographically and in terms of the circumstances of individual women . It is easier for women to access protection in areas where ORG is less culturally prevalent ...

CARDINAL.CARDINAL.CARDINAL . There are particular concerns for applicants whose ORG claim includes fear of the Mungiki . The PERSON have been criticised for encouraging , demanding and enforcing ORG practices upon girls and women in its communities , on the grounds that it is a traditional NORP practice . The Mungiki are known to force their female family members to undergo ORG . There is no evidence to suggest either that the condition of being married is any protection to women , or that single women are at greater risk . ORG may also be forced upon the wives of Mungiki defectors . Anti - FGM legislation provides protection to children and girls below the age of CARDINAL ; it does not address the protection needs of adult women . However , there are community centres , particularly in the southern areas of LOC , that now provide sanctuary to young women and girls who have escaped forced ORG ...

CARDINAL.CARDINAL.CARDINAL ... The authorities actively take measures to prevent ORG , although there have been relatively few prosecutions . Accordingly , those in fear of being forced to seek ORG for their child should be able to seek the protection of the state . Those in fear of undergoing ORG may , in general , seek the protection of the authorities .

CARDINAL.CARDINAL.CARDINAL PERSON should consider cases in which there is no Mungiki element within the context of the ORG guidance on internal relocation ... In general internal relocation is likely to be a viable option in such cases .

CARDINAL.CARDINAL.CARDINAL For cases where there is a Mungiki element , caseowners should consider cases on their individual merits ... Given the increasing efforts of the NORP authorities to crack down on suspected NORP members , and also that GPE has an area of QUANTITY , with a population of CARDINAL people , internal relocation may be feasible in individual cases . ”


Violation of Art. 14 and P1-1;No violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in DATE and lives in the GPE area .

The applicant has been physically disabled since DATE . He was adopted by Mr PERSON , a NORP national , under the terms of a judgment of CARDINAL DATE of ORG . On DATE the ORG tribunal de grande instance granted authority for the judgment to be executed .

NORP In DATE the applicant applied for a declaration of NORP nationality . His application was found inadmissible on the ground that he was over DATE when it was submitted . He appealed to the ORG tribunal de grande instance , which gave judgment on DATE declaring the application inadmissible . That judgment was upheld by ORG on DATE .

NORP In the meantime , FAC ( commission technique d'orientation et de reclassement professionnel – “ LAW ” ) registered the applicant as PERCENT disabled and issued him with an invalids ' card . In DATE he applied to ORG ( caisse d'allocations familiales – “ CAF ” ) for the GPE area for an “ allowance for disabled adults ” ( allocation aux adultes handicapés – “ AAH ” ) . In support of his application , he stated that he was a NORP resident of GPE nationality and the adopted son of a NORP national residing and working in GPE . His application was rejected on the ground that , as he was neither a NORP national nor a national of a country which had entered into a reciprocity agreement with GPE in respect of the AAH , he did not satisfy the relevant conditions laid down in LAW ( see paragraph CARDINAL below ) .

On DATE the applicant brought his case before ORG of ORG .

In a decision of DATE , ORG confirmed the ORG 's decision on the ground that the applicant did not satisfy the conditions laid down in LAW . The authorities noted that GPE , of which the applicant was a national , had not signed a reciprocity agreement with GPE in respect of the AAH .

On DATE the applicant lodged an application with ORG for judicial review of the decision rejecting his claim . The applicant and the ORG lodged their pleadings on CARDINAL DATE and DATE respectively .

In a judgment of CARDINAL DATE , the court decided to stay the proceedings pending the referral of a question to ORG ( ECJ ) for a preliminary ruling . The question was whether the decision not to award the allowance for disabled adults to the applicant , a member of the family ( adopted son ) of a ORG national resident in the country of which the head of household ( the adoptive parent ) had the nationality ( in accordance with NORP legislation ) was compatible with the NORP provisions contained in the LAW establishing ORG ( “ LAW ” ) . In a judgment of CARDINAL DATE the ECJ replied to the question with a ruling that the refusal to award the benefit to the applicant was not incompatible with the relevant Articles of LAW . It pointed out that the applicant 's adoptive father could not claim to be a “ migrant worker ” , which was the category to which the NORP provisions in question applied . It based that finding on the fact that the applicant 's adoptive father , being NORP , had always lived and worked in GPE . The ECJ accordingly concluded that the applicant could not “ rely on Community law in support of his application for a social security benefit awarded to migrant workers and members of the family ” . In doing so , it did not examine the question whether the refusal to award the applicant the allowance was , in general , compatible with Community law or not .

The applicant started receiving the minimum welfare benefit ( revenu minimum d'insertion – “ ORG ” ) on DATE .

On DATE , on the strength of the reply from the ECJ , ORG rejected the application as ill - founded . The applicant appealed against that decision on DATE . He applied for legal aid on DATE .

On DATE ORG at the GPE tribunal de grande instance rejected the application for legal aid to fund the applicant 's appeal on the ground that the request was manifestly ill - founded . On DATE the applicant appealed against that decision . In a decision of CARDINAL DATE the President of ORG allowed the appeal .

In a judgment of DATE , ORG upheld the decision of DATE . It referred to the provisions of LAW in the wording then applicable and to the lack of a reciprocity agreement between GPE and the country of the applicant 's nationality in respect of the allowance .

On DATE the applicant appealed to ORG on points of law . The applicant and the ORG lodged their pleadings on CARDINAL DATE and DATE respectively . On DATE a reporting judge was appointed . He filed his report on DATE . A hearing before ORG took place on DATE . In a judgment of CARDINAL DATE , ORG dismissed the appeal lodged by the applicant and worded as follows :

“ With regard to the applicant 's ground of appeal that ' ... LAW prohibits any discrimination , including on grounds of national origin ; that , in refusing to award Mr PERSON an allowance for disabled adults on grounds of his nationality , ORG disregarded the binding nature of that provision , which it subsequently breached by refusing to apply ... ' ”

ORG ruled as follows :

“ LAW of DATE , which prohibits any discrimination on grounds of national origin , can not be construed as forbidding all nationality criteria on which domestic law makes the availability of a right conditional .

After reiterating the terms of Article L. CARDINAL - CARDINAL of the Social Security Code , which restricts the right to an award of the allowance for disabled adults to NORP nationals and nationals of a country that has signed a reciprocity agreement , ORG properly decided that Mr PERSON , an GPE national , could not claim that allowance in the absence of a reciprocity agreement between GPE and GPE . ... ”

Following the enactment of the LAW DATE , which lifted the nationality condition for awards of non - contributory allowances , the applicant reapplied for an allowance for disabled adults from DATE . His application was rejected by the ORG , whereupon he applied to ORG again . In a judgment of DATE that court declared his application ill - founded on the ground that the applicant had not complied with the formal conditions governing the submission of his application for the allowance because he had not submitted to the ORG all the documentary evidence of his financial situation . The applicant appealed . According to information provided by the ORG and undisputed by the applicant , the LAW re - examined the applicant 's claim , at the request of the ORG , and awarded him the allowance for the period from DATE . It is not apparent from the file whether the applicant continued to receive the benefit after that date . In any event , the applicant has not made any complaint regarding the current period and has not alleged that the allowance has been withdrawn .

LAW of DATE ( Law no . DATE ) provides for the benefit of an allowance for disabled adults . Article L. CARDINAL - CARDINAL of LAW , as worded prior to the entry into force of LAW DATE , provided for the award of this minimum income to any disabled person , subject to the fulfilment of certain conditions :

“ Any NORP national or national of a country that has signed a reciprocity agreement in respect of benefits payable to disabled adults resident in metropolitan GPE ... who is over the age of entitlement to the special education allowance provided for in Article L. CARDINAL - CARDINAL and whose permanent disability is at least equal to the percentage determined by decree , shall receive an allowance for disabled adults if they are not eligible for an old - age or invalidity or employment - injury benefit under a social security or retirement pension scheme or special legislation of an amount at least equal to that of the allowance . ”

The Aliens ( Conditions of Entry , Residence and Asylum ) Act of CARDINAL DATE ( Law no . CARDINAL - CARDINAL ) abolished the nationality condition . Since that Act was passed , any foreign national lawfully resident in GPE may claim the allowance .

With regard to another benefit , namely the supplementary allowance paid by ORG , ORG has ruled that the refusal to award the benefit solely on the ground of their foreign nationality to claimants resident in GPE who received an invalidity pension under the NORP scheme breached LAW Protocol No . CARDINAL ( ORG , judgment of DATE , published in the Bulletin ) .

Recommendation No . R ( CARDINAL ) CARDINAL on a coherent policy for people with disabilities , adopted by ORG on DATE , cross - refers to its Appendix , which provides , inter alia , as follows :

Aims

All people who are disabled or are in danger of becoming so , regardless of their age and race , and of the nature , origin , degree or severity of their disablement , should have a right to the individual assistance required to enable them to lead a life as far as possible commensurate with their ability and potential . Through a coordinated set of measures they should be enabled to :

– have a minimum livelihood , if appropriate by means of social benefits ;

General directives

To implement this policy GPE should take the following steps :

– ensure that people with disabilities enjoy a respectable standard of life , if necessary by means of economic benefits and social services ;

Social provisions remain , however , in many spheres an essential means of either activating and supporting self - help or initiating and promoting rehabilitation and integration processes . ...

ORG . Social , economic and legal protection

Scope and principles

NORP In order to avoid or at least to alleviate difficult situations , sidelining and discrimination , to guarantee equal opportunity for people with disabilities , and to develop personal autonomy , economic independence and social integration , they should have the right to economic and social security and to a decent living standard by :

– a minimum livelihood ;

– specific allowances ; and

– a system of social protection .

CARDINAL.CARDINAL . If there is a global system of economic and social protection for the population as a whole , people with disabilities should be able to benefit fully from it , and their specific needs must be taken into consideration . In so far as this does not exist , a specific system must be established for continuous provision for people with disabilities .

Socio - economic protection must be ensured by financial benefits and social services . This protection must be based on a precise assessment of the needs and the situation of people with disabilities which must be periodically reviewed in order to take into account any changes in personal circumstances which had been the reason for such protection .

Economic protection measures must be considered as one of the elements of the integration process for people with disabilities .

Economic and social security

In addition to social benefits granted to people with disabilities as well as to other people ( for example unemployment benefits ) , the economic and social security system should grant :

– special benefits in cash or in kind , for people with disabilities , covering rehabilitation and other special needs , such as medical treatment , vocational training , technical aids , access to and adaptation of housing , transport and communication facilities ;

– special financial support for families who have a child with a disability ;

– adequate assistance , for example installation allowances or investment loans for people with disabilities wishing to become self - employed ;

– a minimum livelihood covering their and their families ' basic needs and requirements for people with a degree of disablement which prevents them from working ;

– benefits for people who need the continuous assistance of another person because of their disablement ;

– benefits to people who are unable to seek employment because of care provided to a person with a disability ;

– where financial assistance is given up in order to take up employment , this financial assistance should be protected and guaranteed if employment proves unfeasible ;

This recommendation also states that “ the exercise of basic legal rights of people with disabilities should be protected , including being free from discrimination ” .

ORG , in Conclusions concerning LAW in respect of GPE ( CARDINALth report , reference period DATE ; Conclusions XV-CARDINAL , vol . CARDINAL , p. CARDINAL , ORG , DATE ) , states as follows :

“ The ORG notes that Act no . CARDINAL - CARDINAL on entry of foreign nationals into GPE , their residence in the country and the right of asylum brings ORG Social Security Code into line with FAC . The reciprocity requirement for awarding the AAH and the ORG supplementary allowances to foreigners had been found in breach of the LAW by the ORG since supervision cycle ORG for the former and FAC for the latter . Since this requirement has been lifted – the only condition now applied is that the beneficiary be lawfully resident in GPE ( new LAW ) DATE nationals of all Contracting Parties are now on an equal footing with NORP nationals . The ORG considers that the situation is now in conformity with Article CARDINAL para . CARDINAL of the LAW . ”


Violation of Art. 10;Not necessary to examine P1-1;Pecuniary damage - financial award;Costs and expenses partial award

Mr Öztürk , the applicant , was born in DATE . He is one of the owners of ORG publishing house and lives in GPE .

In DATE he published a book by ORG entitled A testimony to life – Diary of a death under torture ( PERSON DATE İşkencede Ölümün Güncesi ) . The book gave an account of the life of PERSON , who in DATE had been CARDINAL of the founder members of ORG of GPE – NORP - PERSON ( PERSON – “ the TKP - ML ” ) , an illegal NORP organisation .

The CARDINAL-page book , illustrated by photographs , has CARDINAL chapters , each of which is prefaced by a poem . These poems were written by CARDINAL NORP poets , namely the author himself , PERSON , PERSON and PERSON , by the NORP writer PERSON and by PERSON .

As the first edition had sold out as soon as it was placed on sale , the book was republished in DATE .

On DATE the public prosecutor at ORG ( “ the ORG ” ) instituted criminal proceedings against Mr GPE , the author of the book , and the applicant , its publisher . However , he dealt with the case against Mr GPE separately , having noted that he had not been in GPE at the material time .

On DATE , at the request of the public prosecutor , a single judge of ORG made an interim order for the seizure of the copies of the second edition . According to the file , CARDINAL copies were seized as a result , including CARDINAL at the applicant ’s publishing house .

On DATE the applicant asked the judge to reconsider the above order ; this appeal was dismissed .

On DATE the public prosecutor charged the applicant with disseminating communist propaganda in breach of former LAW CARDINAL and CARDINAL of LAW ( see paragraph CARDINAL below ) and of inciting the people to hatred and hostility on the basis of a distinction between social classes , an offence under LAW and CARDINAL of LAW ( see paragraph CARDINAL below ) .

Referring to PERSON antecedents , the public prosecutor emphasised that at the head of ORG , a terrorist organisation , he had carried out armed raids with a view to overthrowing the constitutional order of the ORG in order to set up a communist regime .

In support of his submissions the public prosecutor first drew attention to the description of ORG father given on the second page of the book : “ He was a worker who could not accept that life should flow by in that way , and that sweat , energy and labour should be exploited like that . He was dissatisfied with this state of affairs and wanted that forlorn world to change ” . The public prosecutor argued that by equating the status quo with a spoliatory regime this sentence undoubtedly praised communism .

The public prosecutor went on to cite the following poems .

“ ... Ambushes guide me towards my people , vital force of the guerilla war ; resistance is a terrible and noble passion , but that is not all ; like a mistress , it is in addition hesitant , docile , delicate , deft ; we who are masters of patriotism , hope is hidden within us , the immortal standard is red and streams out in the wind ... ”

( ( p . CARDINAL ) PERSON , published in DATE in the DATE publication ORG )

According to the public prosecutor , this poem was to be interpreted in the light of the actions of PERSON . Seen from that point of view , it insinuated that terrorist acts enabled their perpetrators to draw closer to the people and recruit active terrorists from among them and that it was necessary to struggle patiently to establish a communist regime . In his submission , that amounted to illegal communist propaganda .

“ To our dead comrades PERSON , who gave your lives for our people ; You , who gave everything in this fight ; You , who gave the colour red To the battle standard Which flies proudly in our hearts ; You , who died for our immortal people ; You , the sublime sons of our people , Rest now with pride and patience , Your comrades are carrying on the fight ... ”

( ( p . CARDINAL ) PERSON )

The public prosecutor observed that this text honoured the memory of the dead terrorists who had sought to undermine the ORG ’s constitutional regime by force of arms and was intended , particularly in its last phrase , to stir up hatred and hostility .

“ ... The only light That awoke us Was the light of the world ! I went into their houses Where they sat round the table After returning from their work ; They laughed or wept And each resembled the others ; They turned their faces towards the light , Seeking their way ... ”

( ( p . CARDINAL ) PERSON )

The public prosecutor argued that this poem constituted communist propaganda because it held up communism as the only source of light for proletarians .

“ ... They carried out the death sentence ; They spattered with blood The blue mist of the mountains and The newly woken TIME breeze ; Then they came [ and put down their ] weapons . Carefully feeling our chests , They examined us , Searching everywhere ... ”

( ( p . DATE , “ Your absence made me wear out chains ” , DATE )

The public prosecutor contended that these phrases were contemptuous of the security forces who had to stand against the terrorists and thus incited the people to show hatred and hostility towards them .

Lastly , he noted that the expression “ May their virtue be our guide and their memory a light on our way ” , which appeared on the very last page of the book , referred to PERSON and the other terrorists .

Consequently , the public prosecutor argued that the enthusiastic eulogy of the personality and acts of the rebel PERSON in the book in issue justified both PERSON conviction as the publisher responsible within the meaning of section DATE ) of LAW ( Law no . DATE see paragraph CARDINAL below ) and confiscation of the copies of the book pursuant to LAW ( see paragraph CARDINAL below ) .

NORP Before ORG the applicant contested the charges , submitting that he had published the book because he considered that there was nothing in it which could justify repressive measures . In addition , his lawyers argued in particular that the passages in issue , reproduced in the indictment , could not by any means be taken for separatist propaganda and that even supposing that they could be regarded as a criticism of the ORG as constituted at that time , it was the right of every citizen to make such a criticism .

On DATE ORG found the applicant guilty as charged .

In its judgment , after stating that it was satisfied “ that there [ was ] no need to ask experts to examine the book , given that its content [ could ] be understood by anyone on the first reading ... ” , ORG accepted that the passages cited in the indictment did indeed praise the aim and the armed raids of the TKP - ML and its leader and accordingly that the public prosecutor was fully justified in interpreting them as open incitement of the people to hatred and hostility . However , observing that it had considered the content of the book as a whole – in accordance with the case - law of ORG – ORG dismissed the defence arguments relating precisely to the alleged lack of relevance of an assessment based on this or that isolated extract from the book .

Considering that it was not necessary to reproduce in the operative provisions of the judgment the passages judged to be in breach of the law , ORG held :

“ All things considered , the book is intended to glorify and venerate both communism and the terrorist PERSON ... who was a supporter of communism , and to defend his actions ... Moreover , [ the book ] expressly incites the people to hatred and hostility on the basis of a distinction between regions , social classes and races . ”

ORG sentenced PERSON to fines of CARDINAL and MONEY ( TRL ) under LAW and LAW respectively ( see paragraphs CARDINAL and DATE below ) and ordered the book ’s confiscation ( see paragraph CARDINAL below ) .

By a judgment of CARDINAL DATE ORG declared an appeal by the applicant on points of law inadmissible as regards his conviction under LAW , on the ground that no appeal lay against it in view of the amount of the fine ordered for the offence concerned . However , it set aside the verdict under LAW on the ground that it was unlawful to establish the accused ’s guilt merely by referring to the indictment without stating , with reasons , how and in what parts the book was an apologia of communism . It remitted the case on this point to ORG .

On DATE the applicant paid the fine of TRL CARDINAL .

In the judgment it delivered on DATE ORG , basing its decision on an expert report on the content of the book , confirmed the sentence it had imposed under LAW ; it also upheld its order for the confiscation of the book .

However , on DATE this judgment was likewise quashed by ORG , on the ground that the report on which it was based had not been written by experts who had taken the oath . The case was then once again remitted to ORG .

NORP Before ORG the public prosecutor called for PERSON acquittal on the charge of disseminating communist propaganda . He submitted that LAW , on which the conviction in question had been based , had been repealed by LAW ( Law no . ORG ) , which had come into force on DATE .

By a judgment of DATE ORG accepted the public prosecutor ’s submissions . However , observing that the judgment delivered on DATE had become final with regard to the conviction under LAW ( see paragraph CARDINAL above ) , it noted that the confiscation order remained operative .

It appears from the file that CARDINAL confiscated copies of the book were destroyed on DATE .

On DATE , that is before the date of PERSON initial conviction ( see paragraph CARDINAL above ) , the public prosecutor charged the book ’s author , Mr N. Behram , then living in GPE . The indictment filed for that purpose was essentially a copy of the one which had set in motion the proceedings against the applicant ( see paragraph CARDINAL above ) .

By a judgment of CARDINAL DATE , given in the defendant ’s absence , ORG , composed of CARDINAL judges of whom one had also tried the case of PERSON , observed firstly that the court was not required to rule on application of LAW , which had been repealed in the meantime ( see paragraph CARDINAL below ) , then acquitted Mr GPE on the basis of an expert report , in which CARDINAL professors of criminal law maintained that there was nothing in the book which might be held to constitute the offence defined in LAW .

In its judgment ORG , emphasising the book ’s documentary nature , confined itself to an endorsement of the conclusions of the above - mentioned expert report .

This judgment became final , no appeal on points of law having been lodged .

On DATE the applicant , having been informed of Mr ORG ’s acquittal , applied to the Minister of ORG asking him to refer the case to ORG ( GPE emir ile bozma – see paragraph CARDINAL below ) by means of an appeal against his conviction under LAW and against the confiscation order ( see paragraph CARDINAL above ) . In support of his application the applicant pleaded the contradiction between the judgment given against him and the judgment given in respect of the author , whereas both of them had been tried on account of the same book .

Consequently , on DATE , by order of the Minister of ORG , ORG at ORG ( “ ORG Counsel ” ) appealed against the judgment delivered on DATE in the applicant ’s case ( see paragraph CARDINAL above ) , pleading the lack of an explicit decision on what was to be done about the confiscation order .

After ORG dismissal of the appeal on DATE the applicant applied for a second time to the Minister of Justice , submitting that ORG had appealed on the wrong grounds .

The Minister of ORG allowed this application and instructed ORG to argue that the judgment of CARDINAL DATE ( see paragraph CARDINAL above ) was bad in so far as the author himself had subsequently been acquitted of charges identical to those which had led to Mr Öztürk ’s conviction for incitement of the people to hatred and hostility ( see paragraph CARDINAL above ) .

In its judgment of CARDINAL DATE ORG dismissed the ground of appeal submitted by ORG , ruling as follows :

“ The defendant was charged with the offences contemplated in LAW and DATE and LAW and QUANTITY of LAW . The constituent elements of those offences were different . The acquittal of another accused tried for the same offence can not be taken as justified and unshakeable evidence that the defendant should also have been acquitted . [ In addition ] the CARDINAL accused were tried separately and the judgment acquitting PERSON [ GPE ] became final without any appeal on points of law being lodged . Lastly , there is no evidence that the assessment of the content of the book A testimony to life – Diary of a death under torture made in the judgment at first instance is bad and must be invalidated ... ”

At the present time Mr GPE ’s book is on open sale . It is published by another publishing house , ORG , under the different title PERSON of a communist ( PERSON komünistin biyografisi ) .

Article CARDINAL § CARDINAL of the Criminal Code provides :

“ In the event of conviction the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence ... ”

The relevant paragraphs of former LAW of LAW , repealed by LAW ( Law no . ORG ) , provided :

“ Harmful propaganda

A person who by any means whatsoever spreads propaganda with a view to establishing the domination of CARDINAL social class over the others , annihilating a social class , overturning the fundamental social or economic order established in GPE or the political or legal order of the ORG shall , on conviction , be liable to a term of imprisonment of from DATE .

A person who by any means whatsoever spreads propaganda in favour of the ORG ’s being governed by a single person or social group to the detriment of the underlying principles of the LOC and democracy shall , on conviction , be liable to a term of imprisonment of from DATE .

A person who , prompted by racial considerations , by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public - law rights guaranteed by the LAW or undermining or destroying patriotic sentiment shall , on conviction , be liable to a term of imprisonment of from DATE .

A person who publicly condones the offences contemplated in the above paragraphs shall , on conviction , be liable to a term of imprisonment of from DATE .

Where the offences contemplated in the above paragraphs are committed through publication , the penalty to be imposed shall be increased by CARDINAL . ”

Article CARDINAL § CARDINAL and LAW provide :

“ Public incitement to commit an offence

Where incitement to commit an offence is done by means of mass communication , of whatever type – whether by tape recordings , gramophone records , newspapers , press publications or other published material DATE by the circulation or distribution of printed papers or by the placing of placards or posters in public places , the terms of imprisonment to which convicted persons are liable shall be doubled … ”

“ Non - public incitement to commit an offence

A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall , on conviction , be liable to between six months’ and CARDINAL years’ imprisonment and a heavy fine of from CARDINAL MONEY .

A person who incites the people to hatred or hostility on the basis of a distinction between social classes , races , religions , denominations or regions , shall , on conviction , be liable to CARDINAL years’ imprisonment and a fine of from CARDINAL to MONEY . If this incitement endangers public safety , the sentence shall be increased by CARDINAL to CARDINAL .

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in LAW . ”

With regard more particularly to application of the above - mentioned LAW to the publishers of printed matter giving rise to criminal charges , the Government have submitted examples of judgments given by ORG and supplied further information which may be summarised as follows .

In connection with offences committed through the medium of printed matter , the “ principal ” responsibility for the offence defined in LAW is incurred by the author of the writing concerned . The publisher ’s responsibility is “ secondary ” and is incurred under LAW ) of PERSON no . MONEY ( see paragraph CARDINAL below ) . A publisher facing criminal proceedings is charged with “ publishing the writing which constitutes the offence ” contemplated in LAW . However , there are provisions , such as section CARDINAL of LAW ( Law no . ORG ) , which form a lex specialis making publishers criminally responsible .

The main effect of the distinction drawn between the responsibility borne by authors and that borne by publishers is that , unlike the position regarding the former , prison sentences imposed on the latter are commuted to a fine , save in those cases where the above - mentioned LAW no . ORG applies .

Section CARDINAL and section CARDINAL ) of PERSON no . CARDINAL provide :

“ For the purposes of the present PERSON , the term ‘ periodicals’ shall mean newspapers , press agency dispatches and any other printed matter published at regular intervals .

‘ Publication’ shall mean the exposure , display , distribution , emission , sale or offer for sale of printed matter on LOC to which the public have access where anyone may see it .

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place , except where the material in itself is unlawful . ”

With regard to offences committed through the medium of publications other than periodicals , criminal responsibility shall be incurred by the author , translator or illustrator of the publication which constitutes the offence , and by the publisher . However , custodial sentences imposed on publishers shall be commuted to a fine , irrespective of the term [ of imprisonment ] ... ”

Article CARDINAL § CARDINAL of LAW , concerning references to ORG by written order of the Minister of ORG ( GPE emir ile bozma – “ reference by written order ” ) provides :

“ Where the Minister of ORG has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of ORG , he may issue a formal order to ORG requiring him to ask ORG to set aside the judgment concerned ... ”

With regard to the practice followed under NORP law for a reference by written order , the Government have submitted the following information .

This form of appeal lies only against judgments given at last instance which are not appealable to ORG ( see paragraph CARDINAL above ) or against which no party has lodged an appeal on points of law . Only ORG at ORG is empowered to refer a case , and then only on receipt of a formal order to that effect from the Minister of ORG , who may act either of his own motion or at the request of the convicted person . The powers conferred on ORG when it deals with such an appeal are “ extraordinary ” ; they may not be exercised save under the conditions laid down by law nor may the decision prejudice the convicted person . If the appeal succeeds , ORG will normally , in the judgment delivered as a result , set aside the conviction or reduce the sentence ; in the latter case , it will also determine what length of sentence must be served .

The Government have supplied , by way of example , a number of judgments given by ORG concerning the way courts of trial have assessed writings and/or speech that have given rise to prosecutions , particularly for offences defined in former LAW and LAW ( see paragraphs CARDINAL and DATE above ) and the offence contemplated in section CARDINAL of the Prevention of Terrorism Act ( Law no . ORG ) . These were judgments nos . CARDINAL , CARDINAL and PERSON , given by ORG , and judgments ORG . CARDINAL/CARDINAL , DATE , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , DATE and DATE , given by its ORG .

CARDINAL principle which emerges from this case - law is that the first - instance judgment must be based on an assessment of the whole of the writing and/or speech in issue . As regards assessment of the material constituting the offence defined in LAW , ORG has made it clear , particularly in the above - mentioned judgment no . CARDINAL/CARDINAL , that the offence of “ incitement ” consists in an act “ capable of endangering public safety and public order ” irrespective of whether the incitement has actually produced that result . In addition , in judgment no . CARDINAL , in setting aside a conviction under LAW , ORG would appear to have confined itself to noting the “ remote ” nature of the danger posed by the “ incitement ” in issue . Moreover , as regards the imposition of heavier sentences on account of aggravating circumstances , ORG has held that such circumstances must be considered in relation to the existence of a grave and imminent danger threatening the general security of the country or the public . Lastly , in CARDINAL of these cases , ORG stressed the extreme importance – for the protection of the right to a fair trial – of the rule that the accused must always have the opportunity to speak last , before the judges rule .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The following facts were established in the principal judgment :

“ CARDINAL . According to the applicant 's representative before the ORG , the applicant had been refused permission to be represented by his privately retained counsel but legal - aid counsel had been appointed instead . Neither the applicant 's representative nor his family members had been informed of the exact place of his detention in GPE .

The applicant 's representative before the ORG wrote to ORG asking for information regarding the place of the applicant 's detention and the conditions of access to him . Her request was forwarded to the prosecutor in GPE . On DATE the prosecutor forwarded the request to ORG . The applicant 's representative also wrote to ORG and ORG . No replies were received .

On an unspecified date , the NORP authorities sent a request concerning the applicant to the NORP authorities . On DATE the NORP Ministry of the ORG replied and enclosed a letter in NORP from the applicant dated DATE worded as follows :

“ ... during my arrest and detention ... the police and other law - enforcement officers did not violate my rights and did not exert any physical pressure upon me .

I have no claims against the police officers in GPE or PERSON or against any other law - enforcement authority in GPE .

I confirm that this declaration is correct and written with my own hand . ”

According to a linguistic expert report , produced by the applicant 's representative , the above letter did not contain any significant mistakes , whereas the applicant 's personal letters contained numerous mistakes reflecting his NORP mother tongue 's phonetics and grammar . The expert noted that the applicant would not have been able to acquire a sufficient command of the LANGUAGE language during DATE between the date of his sample letters ( September CARDINAL ) and the letter in question ( DATE ) . The expert concluded that the letter of DATE had not been written spontaneously by the applicant , who had transcribed the text from the original or written it from a letter - by - letter dictation by someone else . ”

Following the adoption of the principal judgment by the ORG , by a letter of CARDINAL DATE ORG of GPE replied to a request from the applicant 's representative before the ORG . ORG stated that all matters relating to the execution by the applicant of the prison term imposed by an NORP court in DATE were within the exclusive competence of the NORP authorities ; the applicant 's representative thus had to apply directly to those authorities .

By a letter of CARDINAL DATE , ORG at ORG indicated to the applicant 's representative that any correspondence between the national authorities and the applicant 's representative on procedural matters should be carried out through ORG . Thus , the representative was directed to address all her queries to the ORG .


Preliminary objection allowed (exhaustion);Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE ORG . He is a self - employed food products wholesaler .

In DATE an article was published in several papers about a salmonella epidemic suggesting that it had had its origin in dried milk which had been produced by the applicant .

On DATE the applicant brought an action in ORG súd ) for protection of personal integrity against CARDINAL publishers , ORG , CARDINAL of his business partners and a research institute . He claimed that the published information was untrue in so far as it concerned him and that it caused damage to his business interests . He sought compensation in the amount of CARDINAL NORP korunas ( SKK ) .

On DATE ORG held a hearing following which , on DATE , it decided to transfer the case to ORG ( PERSON súd ) for reasons of jurisdiction .

On DATE the applicant submitted correct addresses for CARDINAL of the defendants . The decision to transfer the case was then served on these defendants and became final on DATE .

On DATE ORG requested that the applicant pay court fees which he did on DATE .

ORG subsequently sought the defendants’ observations in reply and , on DATE , the applicant withdrew his claim in respect of CARDINAL of them .

On DATE ORG held a hearing which was adjourned with a view to obtaining further information including a case file with ORG in a criminal case .

On DATE the applicant extended the action in that he requested that an apology be published and that he be paid MONEY in damages .

On DATE ORG requested the applicant to pay court fees for his extended claim , which he did on DATE .

On DATE the ORG requested that the above - mentioned criminal file be returned to it because it was needed in connection with a different criminal case . ORG returned the case file on DATE but requested that it be given back as soon as possible since it was still needed in connection with the applicant ’s case . ORG reiterated the request on DATE and , in response , it was informed that the case file in question was in fact with the criminal division of ORG on appeal in the second of the criminal cases mentioned above .

DATE and DATE ORG held CARDINAL hearings CARDINAL of which were adjourned in order to obtain further evidence . On each occasion CARDINAL or more of the defendants had been absent .

In the meantime , on DATE ORG decided to return a part of the court fees to the applicant on the ground that he had reduced the scope of his claim for damages to SKK CARDINAL,CARDINAL .

On DATE ORG delivered a judgment ordering CARDINAL of the defendants to pay the applicant LAW , dismissing the action in respect of CARDINAL defendants and discontinuing the proceedings in respect of the remaining CARDINAL defendants .

Both the applicant and the defendant who had been ordered to pay damages appealed on the ground that the operative part of the written judgment did not correspond to the judgment which the court had given orally .

On DATE ORG ordered the applicant to pay the court fees for his appeal and , on DATE , it delivered CARDINAL separate decisions by which it corrected errors in the costs order and in the judgment of DATE .

On DATE ORG quashed the judgment of DATE as being incomprehensible and lacking adequate reasons , which made it impossible to review it . ORG observed that the rectification decision of DATE had changed the substance of the contested judgment , which was procedurally impermissible . The case was remitted to ORG for re - examination .

NORP The applicant then withdrew the action in so far as it concerned CARDINAL of the defendants and maintained it in respect of CARDINAL defendants .

On DATE ORG held a hearing following which , on DATE , it ordered each of the remaining defendants to pay the applicant SKK CARDINAL,CARDINAL in damages and dismissed the remainder of his claim . The applicant and one of the defendants appealed .

On DATE ORG dismissed the applicant ’s petition for an exemption from the obligation to pay court fees for his appeal .

On DATE ORG quashed both the judgment of DATE and the decision of CARDINAL DATE on court fees . It held that ORG had failed to give comprehensible reasons for the amount of damages to be paid to the applicant and that it had failed to establish adequately the facts relevant for the decision on court fees .

On DATE and DATE ORG held hearings . Following the latter hearing , on DATE it exempted the applicant from the obligation to pay court fees , ordered one of the defendants to pay the applicant SKK CARDINAL,CARDINAL in damages and dismissed the remainder of the claim . The parties waived their right of appeal and the judgment became final and binding on DATE .

On DATE the applicant complained of the length of the proceedings to ORG ( Ústavný súd ) under LAW .

On DATE ORG rejected the complaint as having been lodged after the expiry of the twomonth time - limit laid down in LAW .


Remainder inadmissible;No violation of Art. 3 (substantive aspect);No violation of Art. 3 (procedural aspect)

Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in NORP .

On DATE the applicant was charged with a criminal offence of “ threatening security ” ( ogrožanje varnosti ) . He was represented by a lawyer in the ensuing proceedings .

On DATE , DATE , DATE and DATE hearings were held before PERSON ORG ( ORG sodišče v ORG pri GPE ) by a judge , GPE In the course of the proceedings , the applicant , the aggrieved parties , CARDINAL witnesses including CARDINAL defence witnesses , and a psychiatrist were heard .

During the proceedings the aggrieved party lodged a compensation claim ( premoženjsko - pravni zahtevek ) .

On DATE the Šmarje pri ORG , further to the hearing at which the applicant was present , convicted the applicant . The ORG found that in the evening of DATE the applicant had called ORG , a police officer at ORG , his wife and his children CARDINAL times , and had threatened that he would kill them that night . The court sentenced him to CARDINAL months’ imprisonment , but advised the injured parties to institute separate civil proceedings for damages . Since the applicant was unavailable at his address , the written judgment was ultimately served on his wife on DATE .

On DATE ORG ( PERSON v PERSON ) rejected an appeal by the applicant ’s representative on DATE and upheld the first - instance court ’s judgement . The server tried to serve the written judgment on the applicant on DATE . His wife refused to accept the mail and informed the server that the applicant was abroad . A notice was left in the mailbox . On DATE the applicant ’s wife returned the notice to the court and asked that the mail be served on the applicant once he returned , which was on DATE . On DATE the court sent the applicant a letter informing him that the judgment did not necessarily have to be served on him but , in the case of the absence of the addressee , had to be accepted by an adult family member . On DATE the server again unsuccessfully tried to serve the mail on the applicant . On DATE the applicant ’s wife accepted the mail containing the written judgment of ORG .

On DATE the applicant ’s representative lodged a request for protection of legality ( zahteva za varstvo zakonitosti ) with ORG and requested PERSON ORG to adjourn the applicant ’s sentence until the delivery of ORG decision . PERSON ORG rejected a request for adjournment of the sentence on DATE . The decision was served on the applicant ’s wife on DATE , but DATE she returned the sealed mail to the court , stating that the applicant had left for a work - related trip .

On DATE ORG rejected the applicant ’s request for protection of legality . The applicant allegedly saw this judgment only in DATE .

A request for a more lenient sentence lodged by the applicant ’s representative on DATE was rejected by ORG on DATE .

On DATE the ORG summoned the applicant to report to the GPE prison to serve the prison sentence . The applicant was advised that if he did not report to the prison on DATE an arrest warrant would be issued against him . He was also advised that he could ask for adjournment of the sentence provided that there were justified reasons . On DATE the summons was served on the applicant ’s wife .

On DATE the applicant ’s representative requested the President of ORG to adjourn the sentence until the request for protection of legality had been decided by ORG ( see paragraph CARDINAL above ) and on the grounds that the applicant was unfit for prison .

On DATE the President of ORG rejected the applicant ’s request for adjournment as unfounded . The decision was served on the applicant ’s representative on CARDINAL DATE . A consequent appeal was likewise dismissed by the President of ORG on DATE .

On DATE the applicant ’s representative was served with the court ’s letter , with which the decision of CARDINAL DATE was enclosed , informing the applicant that he should report to the prison DATE .

On DATE the applicant ’s representative informed the court that she was not aware of the applicant ’s whereabouts .

On DATE the ORG inquired with the GPE prison as to whether the applicant had started to serve his sentence . On DATE the court issued a warrant for the applicant to be brought to the prison by ORG ( “ the ORG ” ) . The ORG received the order on DATE .

In TIME of DATE , the applicant and his wife were travelling in a car . At TIME , on a road near GPE , PERSON and ORG , CARDINAL police officers from the ORG who were patrolling the road , stopped their car . PERSON recognised the applicant as he had seen him in connection with another traffic offence case . According to the Government , the officers had an arrest warrant to bring the applicant to the GPE prison and were aware of the applicant ’s continuing evasion of the pending imprisonment . PERSON knew that the applicant was a “ problematic ” person and was advised by ORG to request the applicant to show that he had the required equipment for the car ( obvezna oprema ) in order to get him out of the vehicle . PERSON then first asked the applicant to show his identification documents and then to show the car equipment . The applicant stepped out of the car and opened the boot . In the meantime ORG went to the police car to get a police baton since they were expecting the applicant to resist arrest .

When the applicant was standing in front of the car , PERSON told him that he would be arrested on the basis of the warrant issued against him due to his pending sentence and that he should comply with the procedure . The Government and the applicant disputed the subsequent events concerning the applicant ’s arrest .

According to the applicant , the police had not shown him an arrest warrant and he thus refused to be arrested . According to the statements the applicant made in the domestic proceedings , CARDINAL of the officers then punched him in the face and the applicant started to run . The officer caught him and knocked him down . The officer jumped on the applicant and strangled him using an unidentified object . In his observations to the ORG , the applicant maintained that after handcuffing him the officers had beaten him up while he was lying on the ground , despite the presence of his wife and neighbours . The applicant was then left on the ground until his wife helped him to stand up . The applicant was weak and asked for water . The police refused to give him water . They also refused to give him water when asked for it by the applicant at the police station .

According to the ORG , after being informed of the arrest warrant , the applicant replied to the officers that it was invalid as he had appealed against the conviction . In an attempt to conduct a search of the applicant ( varntostni pregled ) , PERSON ordered him to put his hands on the car . The applicant refused . After being warned twice to comply with the order , the applicant said “ no , that is not going to happen ” and started to run . PERSON , followed by ORG and the applicant ’s wife , ran after the applicant . The latter stopped after QUANTITY . At that point the applicant turned towards PERSON and appeared to attempt to hit the officer . PERSON blocked the blow with his left hand and at the same time threw the applicant on to the ground using his left leg . Both officers then tried to handcuff the applicant , who was lying face down on the ground . Due to the applicant ’s resistance ORG used the technique of “ strangling from behind ” in order to release his grip . PERSON then managed to handcuff the applicant , tying the applicant ’s hands behind his back . The applicant continued to try to resist arrest by kicking . ORG then went to the police car to call a police van . During that time , which was TIME CARDINAL , the applicant remained lying on the ground . Once ORG returned , the officers lifted the applicant up and waited for the arrival of the police van . During that period , the applicant ’s wife drove away and returned with several people from the neighbouring area . After the situation had been explained to them these persons did not interfere with the procedure .

It was undisputed that when the police van arrived the applicant was taken first to ORG and then , at TIME , to the GPE prison .

According to the ORG , the applicant was shown the arrest warrant at the police station , where none of the officers noticed that the applicant was injured , except for a bruise on his nose . The applicant also did not complain of pain , except for discomfort caused by the handcuffs . Later , at the GPE prison the applicant complained that he had injuries due to handcuffs , which had been removed , but there was nothing that would require medical care .

A written confirmation of the applicant ’s arrival to the prison issued on DATE by the GPE prison authority stated that the applicant had no apparent injuries or symptoms of any diseases .

DATE , on DATE , at TIME , the applicant was examined by a doctor in ORG , who drew up a report . In the report it was stated that the applicant had alleged that he had been beaten up by the police . An X - ray of his right hand , left hemi - thorax and spine was also taken . Nothing was observed on the X - ray . According to the medical report , the applicant had a reddish bruise around his right eye ( areal pordelosti ) and his right wrist was slightly swollen . The applicant had no signs of injury , haematoma or bruising to his thorax . The doctor noted that the applicant complained of pain between the seventh and tenth ribs , that direct pressure on that area was painful while indirect pressure caused no pain . The kidney area was without any signs of injury , but was slightly painful . The neck was also without any sign of injury .

On DATE the applicant had a follow - up examination in ORG as he was complaining of pain in his chest . Further to the examination , the doctor noted that there were no injuries to that area . He was prescribed pain - killers and advised on breathing exercises .

On DATE the applicant ’s wife reported the incident to the office for complaints at ORG ( FAC za pritožbe pri ORG policijski upravi ) .

On DATE the applicant ’s wife ’s legal representative lodged a criminal complaint against the police officers involved in the applicant ’s arrest . The criminal complaint , to which a note written by the applicant ’s wife was attached , states , inter alia :

“ on DATE , at TIME , ... in the presence of his wife ... ( they ) severely beat and tortured him , threw him on to the ground , pushed his head into the soil ... , and at the same time suppressed his breathing by squeezing his neck , trod on him while he was lying on the ground , stepped on his neck , and then , wearing torn and dirty clothes and barefoot ... , he was arrested and taken to the prison in GPE . ”

The applicant ’s wife mentioned in her note also that the officers had refused to give water to the applicant , refused to provide him with medical aid and had not given him an arrest warrant . In addition , she asked that the inquiry be conducted by ORG instead of Rogaška ORG or ORG , which she did not trust .

On DATE ORG received the above - mentioned documents , together with a note prepared by the officer from ORG . On DATE , further to an interview with the CARDINAL officers involved in the arrest , CARDINAL official notes were prepared by an officer of the RSBPS , PERSON

In CARDINAL of the notes , PERSON stated that he had been informed about the applicant ’s arrest as it happened . When he had arrived at the ORG the applicant , who was handcuffed , was sitting in the waiting room . According to the note , PERSON saw only a bruise on the applicant ’s face and the applicant only complained of pain from the handcuffs . Soon afterwards the applicant was taken to the police van where the handcuffs were taken off .

The other CARDINAL notes recorded what would appear to be separate interviews with the officers PERSON and ORG However , the text of the CARDINAL notes is for the most part identical and appears to be copied and pasted . The ORG testimonies are in line with the version of events submitted by the Government .

On DATE ORG sent a report to ORG ( NORP državno tožilstvo v PERSON ) informing them of the findings of the above inquiry and stating their opinion that the applicant ’s wife ’s allegations were unsubstantiated .

On DATE the applicant ’s wife submitted a medical certificate ( see paragraph CARDINAL above ) to ORG .

ORG subsequently requested ORG to interview the applicant . They conducted an interview on DATE . According to the records of the interview , the applicant stated that after being stopped he was asked to follow the officers to the prison . After he had refused to go to the prison on the grounds that he had not received any warrant to that effect , CARDINAL of the officers allegedly punched him on the right side of his face and he then started to run . After being tackled by CARDINAL of the officers the applicant lay on the ground without resisting . Both officers knelt on him and CARDINAL of them started to strangle him with an unknown object and shouted “ the pig should die ” . When the applicant ’s wife arrived the officers desisted but after the wife left to find help the officers resumed strangling him . The CARDINAL officers were kneeling on his back the whole time . He was subsequently lifted up by his wife .

According to the above - mentioned records , the applicant also stated that he believed that officer PERSON ( see paragraph CARDINAL above ) had been informed about the arrest and had asked the arresting officers to beat him .

On DATE , on the reasonable suspicion that a criminal offence of “ Violation of Human Dignity by Abuse of Office or Official Duties ” ( Kršitev človeškega dostojanstva z zlorabo uradnega položaja ali uradnih pravic ) had been committed , ORG requested that the hearing ( zaslišanje ) of the CARDINAL officers , the applicant and his wife be carried out before the judge of ORG and that the latter ensure that all the circumstances of the case were established .

NORP The officers PERSON and ORG were examined separately by judge ORG on DATE in the presence of their lawyers . PERSON ’s statement of what happened during the arrest corresponds to the ORG ’s version of events ( see paragraph CARDINAL above ) . According to the records of the hearing , PERSON also made the following statement :

“ When he was brought to the police station , we noticed that he had a bruise ( praska ) on his nose , but I do not know where he got it , maybe in the police van , but that was a small bruise , which did not bleed , it looked more like a rash ( odrgnina ) . In any case , when he was brought to the GPE prison , it was established that he had no injuries .

Further to a question by the judge , PERSON stated that the “ osotogari ” throw , which was used against the applicant , was a self - defence technique and that the strangling was a fighting technique in jiu - jitsu and judo , which the officers had learned at police school and more recently at a self - defence class . These CARDINAL techniques were among the least severe . If these QUANTITY techniques had not worked the officers would have needed to use professional blows , which were more likely to cause injuries .

Likewise , the statement given by officer ORG corresponds to the above described version of events relied on by the Government ( see paragraph CARDINAL above ) . As regards the applicant ’s alleged injuries , ORG stated that he had noticed at the police station that the applicant had had a superficial bruise on his nose . He assumed that the bruise had been incurred while the applicant was lying face down on the ground and trying to stand up .

Due to the unavailability of the applicant , ORG ’s lawyer and the applicant ’s wife during different periods of time , the next hearing was not held until DATE . On DATE , the applicant and his wife were examined by judge GPE

The applicant testified , inter alia , as follows :

“ On the road to PERSON I was stopped at the junction by a police officer . A car with the other police officer was hidden in the bushes . ( ... ) . After I stopped the car , a police officer asked me to show the car ’s documents , which were all in order ; after he had checked everything he asked me to open the boot , now I do not know why , but I got out of the car and opened the boot . Next , I closed the boot and the officer told me that I was under arrest . I asked ‘ why’ and told him that I did not have a warrant , which I really did not have . He told me to follow him , but I told him that I was not going anywhere as there was no warrant . Then , the officer hit me on the right side of my forehead . Right now , I do not know what he hit me with , perhaps with a racket or with his hand . I had a red spot there afterwards . As I was hit I started to run in the direction of the hunters’ house , through a field . ... CARDINAL officer ran after me while the other stayed in the car . While he was running the officer hit me on the right leg , so that I fell face down and stayed in that position . The officer jumped on me and started treading on me . Then the officer lay on top of me and started strangling me with a rubber or metallic object . He continued until the second officer came . Then they handcuffed me . Subsequently , while I was lying face down , the officer who had thrown me to the ground and hit me started kicking me in the back and kidney area until my wife arrived and then he stopped . When my wife ran to the hunters’ house the [ same ] officer started strangling me again ( ... ) by pushing my head into the grass . ( ... ) It took TIME from the time the officers stopped my car until I was taken away in the police van . While the officer was strangling me he was shouting “ ‘ the pig should die’ ” and other ugly words ( ... ) until the neighbours came . ( ... ) I was lifted up by my wife . When the police van arrived , I was taken to the police station . I was dirty , barefoot and muddy ( ... ) I asked for water , which they refused to give me . ( ... ) When I arrived at FAC , they said they had never seen anything like it and gave me water . ”

In reply to ORG ’s representative ’s questions , the applicant stated , inter alia :

“ During my arrest the police officers called somebody by phone , I suspect that was GPE I heard that this person told the officers to beat me up and arrest me .

After I had closed the boot , the officer and I stood facing each other and he hit me . [ According to the records , the applicant showed the area above the right eyebrow as the place where the officer had allegedly hit him ] .

The officer threw me to the ground and kicked me CARDINAL times in the back and kidney area . Then he put the handcuffs on so tightly that the circulation was stopped . ( ... ) The officer trod on my back and on the handcuffs ( ... ) . I have had a quarrel with officer GPE for DATE . At the police station they did not show me the warrant .

In reply to a question from PERSON ’s representative , the applicant stated that he had been continuously beaten by the same officer . He further stated that when his wife and the neighbours arrived he was released , and had started vomiting while he was still lying face down on the ground . Replying to the judge ’s question , he said that he was barefoot when lying on the ground but that he did not know at what point the officers had taken his shoes off him .

The applicant ’s wife described the events following the applicant ’s notification of the arrest warrant by the police as follows :

“ My husband was extremely terrified and was in shock . At that point , after the officer had jumped ( planil ) on him , my husband started to run . The officers ran after him and as I was also terrified I started to run too . The other policemen also ran after them . Once I arrived at the spot I was shocked to see my husband handcuffed and lying face down on the ground , with an officer holding him by the neck and pushing his head into the ground . I have to stress that the other officer was not violent . ( ... ) As I got no reply to my question [ concerning the reasons for the applicant ’s arrest ] I ran to the neighbours . [ After she and the neighbours came to the scene ] , my husband was still on the ground totally dizzy ( omamljen ) . Both officers were standing next to him [ further to request for clarification by ORG ’s representative she said that they , the officers , were doing nothing at that point ] . My husband asked to be lifted up and said “ please lift me up and give me some water ” but nobody wanted to help him , so I lifted him up .

As regards the summons to the prison , we had not received it at home .

Further to the ORG ’s representative ’s request , she gave a further statement on the events immediately following the applicant ’s notification of the arrest warrant :

“ My husband was very scared , but I do not remember why ( .... ) . The officer jumped on my husband , who was standing very close to him . ( As regards the exact manner of the officer ’s reaction ) I do not remember as I was in shock . ( ... ) I did not observe the officer touching my husband physically or hitting him . ( ... ) I can not tell or show the way the officer jumped on my husband as I do not remember . ”

In reply to a question put by the judge , the applicant ’s wife stated :

“ When I came to the scene where my husband was lying on the ground , I saw that he was barefoot , but I do not know where he lost his shoes ( ... ) . ”

On the conclusion of the above hearings the case file , together with the records of the hearings , was sent to ORG on DATE .

On DATE the Celje ORG issued a decision dismissing the criminal complaint on the grounds of insufficient evidence . The prosecutor found that the statements made by the applicant and his wife were inconsistent and contradictory . The prosecutor noted in particular , that while the applicant had stated that he was hit in the face after being told he was under arrest , his wife had not observed the applicant being hit by the officer . In addition , the applicant testified that he had been beaten up by the officer up to his wife ’s arrival . She , on the other hand , stated that she saw the applicant having his head pushed into the ground , but not being beaten . Moreover , the public prosecutor found that the medical evidence obtained on DATE did not support the applicant ’s allegations . Had the officers employed the force alleged by the applicant , the latter would have undoubtedly sustained different injuries . The prosecutor , who noted that he could not find the applicant ’s version credible , concluded on the basis of the evidence gathered in the investigation that :

“ ... the applicant resisted the officers , started to run away and by doing so prevented them from carrying out their official duty . Due to his resistance , the officers , in accordance with LAW , employed force leading to the least severe consequences , which is demonstrated by the fact that the applicant did not sustain bodily injuries ( poškodbe ) . ”

The Celje District Public Prosecutor ’s decision of DATE was served on the applicant on DATE . It drew the applicant ’s attention to his right to initiate a criminal prosecution as a subsidiary prosecutor ( subsidiarni tožilec ) , that is an injured party acting as a prosecutor , by lodging a bill of indictment ( obtožni predlog ) within DATE . He did not avail himself of this opportunity .

As instructed by the first - instance court ( see paragraph CARDINAL above ) , police officer PERSON and his wife and children instituted civil proceedings against the applicant at FAC on DATE . On DATE the court held a hearing . By a judgment issued on DATE , it partly granted the police officer ’s claim for compensation for non - pecuniary damage . The applicant lodged an appeal on DATE . There is no information in the case file as to the state or the outcome of these proceedings .

DATE ( PERSON ) reads as follows :

“ No one may be subjected to torture , inhuman or degrading punishment or treatment . ... ”

Further to section CARDINAL of the Administrative Disputes Act CARDINAL ( Zakon o upravnem sporu , ORG no . CARDINAL ) , when no other judicial protection is available ORG has jurisdiction to consider the lawfulness of decisions and actions which interfere with constitutional rights . Under section CARDINAL it is possible to seek a declaration that there has been a violation of a right guaranteed by the LAW and compensation for any loss . ORG decision can be challenged before ORG and ultimately before ORG .

Section CARDINAL , headed “ Violation of Human Dignity by Abuse of Office or Official Duties ” , of LAW ( PERSON zakonik , ORG no . CARDINAL ) provides as follows :

“ An official exercising his office who , by abuse of his office or official duties , treats another person badly , insults him , inflicts minor bodily harm upon him or otherwise treats him in such a way as to affect his human dignity , shall be sentenced to imprisonment for not DATE . ”

In GPE , public prosecution is mandatory when reasonable suspicion ( utemeljeni sum ) exists that a criminal offence subject to mandatory prosecution has been committed . Public prosecutions are conducted by the public prosecutor ’s office , an autonomous body within the justice system ( LAW , and sections CARDINAL and CARDINAL of LAW , Zakon o državnem tožilstvu , Official Gazette no . CARDINAL ) .

If the public prosecutor dismisses the criminal complaint or drops the prosecution at any time during the course of the proceedings , the aggrieved party has the right to take over the conduct of the proceedings in the capacity of a subsidiary prosecutor ( subsidiarni tožilec ) , that is , as an aggrieved party acting as a prosecutor ( section ORG ) of LAW , Zakon o kazenskem postopku , Official Gazette no . CARDINAL ; - “ CPA ” ) . A subsidiary prosecutor has , in principle , the same procedural rights as the public prosecutor , except those that are vested in the public prosecutor as an official authority ( CPA , section CARDINAL ) ) . If the subsidiary prosecutor takes over the conduct of the proceedings , the public prosecutor is entitled at any time pending the conclusion of the main hearing to resume the conduct of the prosecution ( CPA , section CARDINAL ) ) .

The aggrieved party , who may be represented in the proceedings by a lawyer , may during the investigation call attention to all facts and propose evidence relevant to establishing the commission of a criminal offence , the perpetrator thereof and damages incurred as a result of the offence ( CPA , sections CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) ) . This should apply analogously ( CPA , section CARDINAL ) to the investigative measures taken in the summary proceedings ( see paragraph CARDINAL below ) .

NORP criminal proceedings are divided into CARDINAL stages – preliminary proceedings ( predkazenski postopek ) , conducted by the police and the public prosecutor ; criminal investigation ( preiskava ) , conducted by the investigating judge of the district court , and trial ( glavna obravnava ) , conducted before mixed panels of professional judges and lay judges at district court level or a single professional judge of the local court . Proceedings falling under the jurisdiction of local courts ( offences punishable by a fine or imprisonment of not DATE ) are summary proceedings ( skrajšani postopek ) , which do not include the criminal investigation stage .

In summary proceedings before a local court , the criminal proceedings may start with a bill of indictment ( obtožni predlog , CPA , section CARDINAL ) submitted by the public or subsidiary prosecutor . Before lodging the bill of indictment , the public prosecutor or subsidiary prosecutor can request the judge to perform individual investigative measures ( CPA , section CARDINAL ) . If such measures have been carried out , the court , further to the submission of the bill of indictment , may dismiss the latter as not allowed if it considers that there is no reasonable suspicion that the accused has committed the alleged criminal offence ( CPA , section CARDINAL , read together with section CARDINAL ) .

For a more detailed presentation of the legislation concerning the criminal proceedings in GPE see PERSON v. GPE , no . GPE , § § DATE , DATE .

According to section CARDINAL of the CPA , the judgment imposing imprisonment should be served on the accused in person as well as on his or her representative . However , if the convicted person is not found at his address , the server should leave a note informing him or her of a new date on which he or she is to be served with the mail . If the accused person is not found at his or her address on that date , the server shall serve the mail on , inter alia , an adult family member , who is required to accept that mail . The mail is thereby considered to have been effectively served on the addressee . ( sections CARDINAL and CARDINAL of the CPA ) .

Once the judgment becomes enforceable , that is when no ordinary appeal lies against it ( for example , a higher court judgment upholding the first - instance court ’s judgment ) and has been effectively served ( section CARDINAL of the CPA ) , the convicted person is summoned to report to prison by the district court which has jurisdiction over the place of his or her residence ( section CARDINAL of GPE , Zakon o izvrševanju kazenskih sankciji , ORG no . CARDINAL , - “ EPSA ” ) .

It would appear to suffice that the summons to the persons which are represented by a lawyer be served on the latter ( section CARDINAL of the ORG and LAW of ORG , Zakon o splošnem upravnem postopku , ORG no . CARDINAL/CARDINAL ) .

If the request for an adjournment of the sentence , which in principle can be lodged with the president of the district court within DATE of the receipt of the summons ( see paragraph CARDINAL above ) , is rejected , that decision can be challenged before the president of the higher court . If an appeal is dismissed , the convicted person must start serving his sentence DATE after the service of the decision . If the convicted person is legally represented , the decisions concerning the request for adjournment shall be served on his or her representative only ( sections CARDINAL and CARDINAL of the EPSA ) .

If the convicted person fails to report to prison despite being summoned , the court shall issue an arrest warrant against him or her after establishing that the summons has been served effectively or that the circumstances indicate that he or she has been evading the service of summons ( section CARDINAL of the EPSA ) .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . 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 applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant 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 .