Violation of P1-1;Pecuniary damage - financial award

The applicant is the owner of an apartment in GPE , which he had let to GPE

In a registered letter of CARDINAL DATE , the applicant informed the tenant that he intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE .

In a writ served on the tenant on DATE , the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before ORG .

By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant served notice on the tenant requiring her to vacate the premises . On an unidentified date , he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .

On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for his mother .

DATE and DATE the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

On DATE , the applicant repossessed the apartment .

The relevant domestic law is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.


Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

NORP The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in Krems . He is represented before the ORG by Mr PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) are represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

On DATE ORG ( PERSON ) convicted the applicant of various offences under LAW and sentenced him to DATE imprisonment . It found him guilty of having commissioned various persons DATE to import cocaine to GPE and to have sold QUANTITY of cocaine to various individuals in GPE . In fixing the sentence , the court had regard to the fact that the applicant had CARDINAL previous convictions CARDINAL of which also concerned offences under LAW . It also revoked the suspension of a term of CARDINAL months’ imprisonment resulting from a previous conviction . The applicant ’s imprisonment was due to be terminated on DATE .

The applicant was detained at FAC when he was diagnosed with multiple sclerosis in DATE . Subsequently , he was regularly taken to the public hospital in GPE , which has an out - patient department specialised in the treatment of multiple sclerosis . Examinations took place on DATE , DATE and DATE and on DATE .

By decision of DATE ORG , noting that the applicant required more intensive medical treatment and care , ordered his transfer to FAC for the further execution of his sentence , as that prison centre was equipped with a hospital of its own . However , ORG refused the applicant ’s request for a suspension of the execution of his sentence pursuant to section CARDINAL § CARDINAL taken together with section CARDINAL § CARDINAL of LAW ( Strafvollzugsgesetz ) .

ORG ( Oberlandesgericht ) dismissed the applicant ’s appeal on DATE . It noted on the basis of a medical expert opinion that the applicant , suffering from multiple sclerosis , was unfit for detention . However , he was to be considered dangerous within the meaning of section QUANTITY of LAW . He had been convicted CARDINAL times . His last conviction for importing and selling QUANTITY of cocaine concerned a particularly serious crime . Although the applicant ’s mobility was reduced by his illness , he could use his contacts within the criminal scene to commit or instigate further crimes .

On DATE the applicant was transferred to PERSON prison . From that date he was detained in the hospital of PERSON prison . The Government submitted a statement of the head doctor of the PERSON prison : The hospital has its own medical and nursing staff . Doctors carry out daily visits and medical and nursing assistance is available TIME per day . All sanitary facilities in the prison hospital are suitable for persons with disabilities . The preparation of food takes special needs into account .

Until DATE the applicant was placed in room no . CARDINAL of the prison hospital , which is equipped with sanitary facilities ( shower and toilet ) suitable for persons with disabilities . Subsequently , he was placed in CARDINAL other rooms of the prison hospital , namely room no . CARDINAL until CARDINAL May DATE and room no . CARDINAL until his release . While staying in these rooms the applicant could use the hospital ’s common shower room with the assistance of prison staff .

The applicant continued to receive treatment at the multiple sclerosis department at the GPE Pölten public hospital . An examination scheduled for DATE was refused by the applicant . Further examinations took place on CARDINAL May and DATE and on DATE and DATE . The applicant ’s therapy was fixed and continuously adapted by the specialists of the multiple sclerosis department and was carried out at the prison hospital . Moreover , the applicant was treated by the prison hospital ’s pain specialist several times .

In addition to medication , the applicant received physiotherapy from DATE . This was available in the prison hospital . A first set of CARDINAL therapy units was prescribed . The applicant underwent CARDINAL units DATE but renounced to make use of the remaining units . Subsequently , physiotherapy was resumed and the applicant received TIME therapy units DATE .

On DATE the applicant , represented by counsel , requested anew that the execution of his sentence be suspended due to his illness pursuant to section CARDINAL § CARDINAL taken together with section CARDINAL § CARDINAL of LAW and that he be released .

He joined an opinion by an expert on neurology and psychiatry , Dr. ORG According to the expert ’s opinion dated DATE the applicant was unfit for detention . Since he had been diagnosed with multiple sclerosis in DATE his state of health had deteriorated considerably . In particular , the mobility of his arms and hands was restricted and he could no longer perform simple gestures necessary for everyday life , such as handling cutlery for instance . His general mobility on the ORG scale was CARDINAL ( CARDINAL being full mobility , CARDINAL meaning dependency on a wheel - chair ) . He received medication , however this was not sufficient as according to medical opinion a multidisciplinary approach , encompassing neurology , physiotherapy and psychology , was necessary for treating multiple sclerosis . The support by close relatives was also crucial .

As to the question whether there was still a danger that he would commit further offences , the applicant submitted that all his energy was devoted to combating his illness . Should the court have doubts in respect of his dangerousness , he requested that the opinion of an expert be taken .

On DATE ORG dismissed the applicant ’s request . It noted that according to the prison administration , the applicant ’s conduct was good . According to the prison doctor , the applicant ’s condition was stable for the time being but could deteriorate at any time . Referring to the expert opinion , the court acknowledged that the applicant was unfit for detention due to his illness . However , he was to be considered particularly dangerous . In that respect , the court referred to the decision by ORG DATE , which had found that even if his mobility was reduced there was a danger that the applicant might use his contacts to organise further drug trafficking . Therefore the conditions for suspending the execution of his prison term as laid down in section CARDINAL § CARDINAL taken in conjunction with section CARDINAL § CARDINAL of LAW were not met .

The applicant appealed , claiming in particular that his illness had weakened him substantially and all remaining energy was required to cope with the illness . Consequently , it could no longer be assumed that he would commit further offences . In that connection he complained that ORG had assumed that his dangerousness persisted without having taken a further expert opinion .

By decision of CARDINAL DATE ORG dismissed the applicant ’s appeal . It noted that the applicant suffered from multiple sclerosis and was unfit for detention . However , it confirmed ORG view regarding the applicant ’s dangerousness . It observed that he had been convicted CARDINAL times . The prison term he was serving related to the trafficking of a substantial amount of drugs , namely QUANTITY of cocaine which he had imported though third persons and sold in GPE . Pursuant to section QUANTITY of LAW , the sentence had to be executed even where the detainee was unfit for detention if he presented a danger to the security of others having regard to the nature of his offences or the motive for which they were committed or in view of his prior conduct . The court referred to the applicant ’s recidivism and the large amount of drugs which he had sold , and found that his dangerousness was not offset by the effects of his illness .

In sum , ORG found that despite the fact that the applicant was unfit for detention , his substitute confinement ( Ersatzhaft ) DATE if need be in a public hospital – was required for the protection of others .

By application of DATE the applicant again requested that the execution of his sentence be suspended pursuant to section CARDINAL § CARDINAL taken together with section CARDINAL § CARDINAL of LAW and that he be released .

He submitted a private expert opinion by Dr. PERSON , a neurologist , psychiatrist and physiotherapist . The opinion , dated DATE , stated that the danger that the applicant would commit further offences had considerably decreased . While his prior convictions indicated a certain risk , all other relevant factors rather allowed a positive prognosis . His severe and progressive illness required all his energy and had led to a profound change . Moreover , the applicant ’s age , his reduced mobility , the need of constant medical treatment and his dependency on help from others made it unlikely that he would commit further offences .

ORG appointed a psychiatric expert Dr. PERSON In his opinion , dated DATE , Dr. PERSON noted that the applicant was detained in the prison hospital and that according to the prison doctor his state of health had deteriorated over DATE . By now he was able to walk only with great difficulty . The expert confirmed that the applicant was unfit for detention due to his illness . Regarding his dangerousness , the expert found that the applicant still made an astonishingly energetic impression . Although his progressive illness and his age could be considered as a factor reducing the probability of a relapse into crime , his personality did not necessarily indicate that he would refrain from committing further offences . In sum , the remaining danger had to be compensated by stabilising factors such as assistance by a probation officer ( ORG ) .

On DATE ORG ordered the applicant ’s release . It noted that the applicant was detained in the prison hospital . The hospital ’s head doctor had submitted comments in favour of release . Furthermore , expert Dr. PERSON had found that the applicant ’s inclination to commit further offences had decreased but not totally disappeared and had recommended that a probation officer be appointed in case of release .

Referring to its previous decision , ORG noted that the applicant suffered from multiple sclerosis and was unfit for detention . While that decision had refused the applicant ’s release on account of his dangerousness , the applicant ’s good conduct in the meantime and Dr. B. ’s expert opinion led to the conclusion that the applicant ’s dangerousness had decreased . On the condition that he would reside with his mother and be assisted by a probation officer it could be assumed that he would not commit further offences . The execution of his sentence was therefore suspended pursuant to section CARDINAL § CARDINAL of LAW .

In order to allow for the necessary preparations , the court ordered that the applicant be released on DATE .

NORP The applicant was released on DATE .

Section CARDINAL § CARDINAL of the DATE LAW provides that the execution of a prison term is to be suspended if the convict is unfit for detention due to invalidity or a physical or mental illness . Pursuant to section QUANTITY of the said LAW a convict who is unfit for detention may nevertheless be deprived of his liberty if he presents a danger to the security of the ORG or to the security of third persons , having regard to the nature or the motive of the offence committed by him , or in view of his prior conduct . If need be , confinement is to be carried out at a public hospital .

Pursuant to section CARDINAL § CARDINAL the execution of a sentence has to be suspended if a prisoner becomes unfit for detention while serving his prison term . The conditions set out in section CARDINAL apply .


CASE OF PIERSACK v. BELGIUM (ARTICLE 50)

Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The present case was referred to the ORG by ORG ( " the Commission " ) on DATE . The case originated in an application ( no . CARDINAL/CARDINAL ) against GPE lodged with ORG on DATE by a NORP national , Mr. PERSON .

ORG By judgment of CARDINAL DATE , ORG held that there had been a violation of LAW ( article DATE ) of the LAW , in that the impartiality of the " tribunal " which , on DATE , had determined the " merits " ( in the NORP text : " bien - fondé " ) of a " criminal charge " against Mr. PERSON - namely , ORG - " was capable of appearing open to doubt " ( Series A no . CARDINAL , paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , pp . CARDINAL - CARDINAL ) .

The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts , the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to paragraphs CARDINAL to CARDINAL of the above - mentioned judgment ( ibid . , pp . CARDINAL ) .

At the hearing of CARDINAL DATE , Mr. PERSON ’s lawyer had stated that his client was seeking under LAW ) his immediate release , in accordance with " arrangements to be discussed " , and also financial compensation to be used to meet the fees of his lawyers before ORG ( CARDINAL BF ) and in GPE ( CARDINAL BF ) , subject to deduction of certain amounts paid by ORG by way of legal aid ( CARDINAL FF ) .

Counsel for the Government had replied that , were the ORG to find a violation , publication of the judgment would itself constitute adequate just satisfaction .

In its judgment of DATE , the ORG reserved the question and invited the ORG to submit , within DATE , its written observations and , in particular , to notify ORG of any friendly settlement at which the ORG and the applicant might have arrived ( paragraphs CARDINAL of the reasons and point CARDINAL of the operative provisions , ibid . , p. CARDINAL ) .

ORG After an extension of the above - mentioned time - limit by the President of the ORG , and in accordance with his Orders and directions , the PERSON received :

- on DATE , from the Secretary to ORG , brief observations by its ORG and copies of the correspondence it had exchanged with the ORG and the applicant DATE ;

- on DATE and DATE , from the Agent of the Government , certain supplementary remarks ;

- on DATE , CARDINAL letters from Mr. PERSON ’s lawyer .

These documents revealed that no friendly settlement had been arrived at .

ORG Acting on the President ’s instructions , the PERSON wrote to the Agent of the Government on DATE . The letter , which made reference to the wording of and the case - law on LAW ) , enquired - " without prejudice to the decision which the ORG might take on the point in question " - whether the NORP authorities considered that NORP law provided " any means whereby full reparation can be made for the consequences of the breach found ... by the judgment of DATE " .

In his reply dated DATE and received at the registry on DATE , the Agent indicated that DATE previously the NORP Minister of ORG had requested the procureur général ( ORG prosecutor ) attached to ORG to challenge before the latter Court the judgment of DATE whereby ORG had sentenced the applicant to DATE hard labour for murder ( see paragraph QUANTITY above ) . The Minister had taken this step pursuant to LAW , which provides as follows :

" Where , on production of formal instructions which he has received from the Minister of ORG , the procureur général attached to ORG impugns , before the ORG hearing appeals on points of law in criminal cases involving serious , lesser and petty offences ( en matière criminelle , correctionnelle et de police ) , judicial acts or judgments as being contrary to the law , such acts or judgments may be annulled . ... "

ORG The subsequent developments in the case appear from letters which the PERSON received from ORG on DATE , DATE and DATE and DATE .

( a ) The procureur général referred the matter to ORG on DATE . In his submissions , he urged that ORG had " to recognise that ORG judgment had the force of res judicata " and " consequently to conclude that ... the procedural acts before the [ ORG and the latter ’s judgment " had violated LAW ( article DATE ) of the LAW and " were therefore contrary to the law , within the meaning of LAW " . He also expressed the view that the fact that Mr. PERSON ’s appeal on points of law against the judgment in question had been dismissed on DATE ( Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) did not prevent ORG from applying Article CARDINAL , notably because at the relevant time it had been unaware of " CARDINAL facts " on which " ORG had based ... its decision " : " firstly , Mr. PERSON , the President of ORG , had until DATE been the head of the section in the GPE public prosecutor ’s department that was responsible for GPE ’s prosecution " ; " secondly , in that capacity , [ he ] had in fact played a certain part in the proceedings " ( ibid . , pp . CARDINAL , § CARDINAL ) .

On DATE , ORG , adopting these submissions , annulled the procedural acts subsequent to the committal for trial before ORG ( DATE ; ibid . , p. CARDINAL , § CARDINAL ) and the judgment of CARDINAL DATE to the extent that it had convicted the applicant of , and sentenced him for , the manslaughter ( meurtre sans préméditation ) of CARDINAL PERSON ( ibid . , pp . CARDINAL - CARDINAL , § § CARDINAL and CARDINAL ) ; with these limitations , the case was referred back to ORG .

( b ) On DATE and DATE , Mr. PERSON instituted , before the President of ORG , sitting as judge hearing urgent applications ( siégeant en référé ) , proceedings against ORG , the procureur général attached to ORG , the procureur du PERSON ( public prosecutor ) attached to ORG and the Governor of PERSON . He claimed that he had been " arbitrarily detained since DATE " ; accordingly , he requested the President to " order [ his ] immediate release " and to direct ORG to pay to him MONEY " per day since CARDINAL DATE , by way of damages for unlawful imprisonment " .

The President of ORG held on DATE that he had no jurisdiction in the matter , since " the defendants ha[d ] not committed any manifest illegality ( voie de fait ) " : he found that following the judgment of CARDINAL DATE the plaintiff had re - acquired " the status of a detainee on remand " ; the legal basis for that detention lay in the judgment of DATE by the chambre des mises en accusation ( ORG ) ( see Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) , which judgment had not been annulled by ORG .

( c ) ORG , by CARDINAL votes to CARDINAL , convicted Mr. PERSON on DATE and sentenced him to CARDINAL years’ hard labour , a sentence identical to that which had been imposed on DATE .

The applicant did not appeal on points of law against this judgment since he considered that " this time " he had received a " fair trial " .

ORG On DATE , DATE , DATE and DATE , the applicant , the ORG ’s ORG and the Government lodged with the registry , in accordance with the Orders and directions of the President of the ORG , further observations on the application of LAW ) in the present case in the light of the events described above .

On DATE , the Registrar also received from the Secretary to the Commission the reply to a request for information which the Registrar had made on DATE on the instructions of the ORG .

ORG After consulting , through the PERSON , the Agent of the Government and ORG , the ORG decided on DATE that there was no call to hold hearings .

ORG Mr. PERSON and Mr. PERSON , substitute judges , replaced Mr. PERSON and Mr. PERSON , who were prevented from taking further part in the consideration of the case ( Rules CARDINAL § CARDINAL and CARDINAL § CARDINAL of ORG ) .


The applicant was born in DATE and lives in PERSON .

On DATE the applicant brought a civil action in ORG against a certain GPE , seeking repayment of a loan .

Having heard the applicant in person at a hearing on DATE , on DATE the court gave a judgment accepting the applicant 's claim . On DATE the ORG quashed that judgment for factual shortcomings and remitted the case . In its decision , ORG instructed the first - instance court to hear and confront the parties , as well as to hear the other witnesses proposed by the applicant with a view to establishing , inter alia , whether the loan had been made to GPE or to his father , whether a part of it had in the meantime been repaid and whether the claim was time - barred .

In the resumed proceedings , the court held a hearing on DATE , which the applicant did not attend although duly summoned . On that occasion , his lawyer informed the court that the applicant was in poor health and needed surgery . Therefore , the applicant would not be able to attend court hearings , but maintained all his claims , as previously stated in his oral and written submissions to the court .

On DATE the applicant submitted a medical certificate , stating that he suffered from paranoid psychosis with signs of hypochondria , and that he was unable to attend court hearings .

The court appears to have held further hearings on DATE and DATE , both attended by the applicant 's lawyer . It also obtained an expert opinion on DATE .

The court subsequently ordered the applicant 's lawyer to inform it of the exact date and place where the applicant would be medically treated . It further contacted the medical institution which had issued the certificate of DATE , requesting its opinion on whether the applicant 's health allowed him to be a party to the proceedings . It would appear that none of the court orders has ever been complied with .

At the hearing held on DATE the applicant 's lawyer specified the claim , whereas the respondent submitted that , if the applicant was ill , the court could not continue the proceedings .

NORP The proceedings are still pending before the first - instance court .

The relevant provisions of this legislation are set out in the V.A.M. v. GPE judgment ( no . CARDINAL , § § DATE , CARDINAL DATE ) .

The relevant provisions of this LAW ( hereafter referred to as the “ CPA ” ) provide as follows :

“ During the course of the proceedings , the court shall ex officio verify whether the person appearing as a party may be party to the proceedings and whether he or she has the capacity to act ... ”

“ Should the court establish that the person appearing as party can not be party to the proceedings , and that this obstacle can not be eliminated , it will invite the plaintiff to undertake the necessary amendments to the claim ... ”

“ CARDINAL . Relevant facts may also be established by hearing the parties .

The court shall decide to hear the parties when there is no other evidence or when , despite the presentation of other evidence , the court deems it necessary with a view to establishing relevant facts . ”

“ ... CARDINAL . The court may decide to hear CARDINAL of the parties , if the other party refuses to give a statement or does not appear [ at the hearing ] despite the court summons .

If a party dies in the course of the proceedings , or his or her repeated examination becomes impossible for some other reason , the court will read TIME containing that party 's statement . ”

“ The party may be heard through another court only if he or she can not come to the court in person due to obstacles which can not be eliminated or at extremely high costs . ”

“ CARDINAL . The court may not use any compelling measures in respect of the party which did not appear at the scheduled court hearing [ for the examination of the parties ] , nor can a party be forced to give a statement .

's failure to appear or refusal to give a statement . ”

“ If a hearing is held before a new formation [ of judges ] , the main hearing must recommence , but the chamber may , having consulted the parties , decide not to hear witnesses and expert witnesses or hold an on - site inspection again , but instead read TIME of the evidence already taken . ”

The relevant provisions concerning ORG and GPE and the succession of ORG and GPE are set out in GPE judgment ( no . CARDINAL , § § CARDINAL , CARDINAL and CARDINAL , DATE ) .

Sections CARDINAL , CARDINAL and CARDINAL of this Code define “ abuse of office ” ( zloupotreba službenog položaja ) , “ judicial malfeasance ” ( kršenje zakona od strane sudije ) and “ official malfeasance ” ( nesavestan rad u službi ) as separate criminal offences .

Article CARDINAL of LAW ( Ustav PERSON ) , published in ORG of GPE ( ORG - no . CARDINAL ) , provided as follows :

“ Everyone shall be entitled to compensation for any pecuniary and non - pecuniary damages suffered due to the unlawful or improper conduct of a ORG official , a ORG body or a public authority , in accordance with the law .

Such damages shall be met by GPE or the public authority [ in question ] . ”

This LAW was repealed on DATE , which is when the “ new ” LAW ( published in OG RS no . CARDINAL ) entered into force .

The substance of LAW of LAW corresponds , in its relevant part , to the above - cited text of DATE LAW .

Article CARDINAL of the new LAW provides that a constitutional complaint may be lodged against the acts of public entities violating human and minority rights and liberties guaranteed by LAW .

Section CARDINAL of LAW on LAW ( ORG RS CARDINAL ) provides that the election of ORG judges shall be finalised before the end of the first ORG .


The first applicant , PERSON , is the mother of the second applicant , PERSON . Both applicants are resident in GPE .

ORG had a relationship with PERSON ’s father out of which PERSON was born on DATE . It is alleged that this relationship was terminated soon after PERSON ’s birth , after which PERSON lived with his mother PERSON . At that time both applicants were resident in NORP and had NORP nationality .

Ms Knel married another man . She and her husband moved to the GPE in DATE , leaving PERSON with his paternal grandparents . She now has GPE nationality . PERSON still has NORP nationality .

In DATE PERSON applied to the Minister for ORG for a provisional residence visa ( machtiging tot voorlopig verblijf ) in PERSON ’s name . Such a visa is normally a prerequisite for the grant of a residence permit which confers more permanent residence rights .

By a letter dated CARDINAL DATE ORG of ORG informed the GPE embassy in GPE that there was no objection to the grant of a provisional residence visa to GPE . The applicants state that they were never informed of any decision , whether favourable or otherwise . They did not , however , take proceedings on the basis of an implied refusal , as they might have done within a reasonable time if it appeared that a decision was not forthcoming . It appears that PERSON remained in GPE .

A new request for a provisional residence visa was lodged in DATE , through the GPE embassy in the NORP capital GPE . On DATE the Minister for Foreign Affairs gave a decision refusing such a visa on the ground that PERSON , having been resident with his grandparents since DATE , had ceased to be part of his mother ’s family unit .

The applicants lodged an objection ( bezwaarschrift ) against this decision on DATE . Following a hearing on DATE the Minister for ORG gave a decision on DATE dismissing the objection . This decision was transmitted to the embassy in GPE .

The applicants lodged an appeal with ORG ( GPE rechtspraak ) of ORG ( PERSON ) against the Minister ’s decision on DATE . This appeal was withdrawn on DATE . It is stated that their reason for so acting was that PERSON could not obtain a passport from the NORP authorities , and that without a passport they did not expect the appeal to have any prospects of success .

As alleged by the applicants , the situation in NORP had become untenable due to the deterioration of PERSON ’s GPE health . PERSON decided to bring PERSON into the GPE without complying with the formalities , and on DATE PERSON entered GPE .

On DATE , DATE after PERSON had entered the GPE , Ms GPE applied in his name for a residence permit . By a decision dated DATE the Deputy Minister of ORG refused to grant such a permit .

On DATE the applicants lodged an administrative appeal ( administratief beroep ) against the Deputy Minister ’s refusal . This was rejected on DATE .

The applicants appealed to ORG ( Arrondissementsrechtbank ) of GPE on DATE .

Following a hearing on DATE ORG dismissed the appeal on DATE . ORG considered that PERSON could be cared for in NORP by a sister of PERSON ’s father , with financial assistance from ORG if need be , and that the applicant ’s separation in DATE had been a consequence of ORG choices with regard to the way she had wished to lead her personal life .

It appears from a letter received from the ORG representative on DATE that the GPE authorities were then contemplating removing PERSON to NORP . However , the ORG has not been informed that this has taken place .


Violation of Art. 14+P1-1;Pecuniary and non-pecuniary damage - financial award (total);Costs and expenses partial award - Convention & domestic proceedings

The applicant , who is a NORP national of NORP origin , was born in DATE and lived in GPE .

The applicant moved to GPE in CARDINAL . He was in employment for DATE and consequently was affiliated to the general social security scheme . The relevant law governing it did not exclude the participation of foreign nationals in the general social security scheme .

On DATE the applicant and his wife , who is a NORP national , jointly bought a farm . They took possession of it on DATE . At about that time the applicant terminated his employment and decided to make his living from the farm .

On DATE the applicant requested the GPE branch of ORG ( PERSON ) to admit him to the farmers ' social security scheme .

On DATE his request was refused on the ground that he was not a NORP national , a condition stipulated in ORG of DATE ( “ the DATE LAW ; ustawa o ubezpieczeniu społecznym rolników ) . As a result , the applicant did not have social security cover in the event of sickness , occupational injury and invalidity . In addition , he could not pay contributions towards his old - age pension .

In a decision given on DATE , the applicant 's wife was admitted to the farmers ' scheme .

The applicant appealed against the decision given in his case . He submitted that as a self - employed farmer he was exposed to the risk of work - related accidents . Furthermore , he argued that since he had acquired the farm he had terminated his previous employment and that the farm was intended to provide for his livelihood . The applicant also submitted that when previously employed he had been covered by the general social security scheme despite his foreign nationality . As a result of the refusal , he could not pay his social security contributions , so the relevant time would not be taken into account when calculating his future retirement pension .

He also submitted that he had been informed about an obligation to join the scheme by way of a clause in the notarial deed whereby he had acquired the farm . In addition , the applicant stated that he had been living in GPE for DATE and that he had had a permanent residence permit for DATE . He also referred to his NORP origin and his willingness to pay the relevant contributions to the scheme .

On DATE ORG dismissed the applicant 's appeal , finding that the applicant could not be admitted to the farmers ' social security scheme as he did not have NORP nationality . On the other hand , it observed that in the event of a serious occupational injury the applicant could be granted a CARDINAL - off compensation payment as provided in section CARDINAL(CARDINAL)(CARDINAL ) of LAW . As regards access to health services , ORG noted that the applicant , as a foreign national permanently residing in GPE , would be provided with such access by a law which was to come into force on DATE .

The applicant appealed against that judgment . He submitted that the refusal to admit him to the social security scheme for farmers on the basis of his nationality was discriminatory . He alleged a breach of the principle of equality , relying on the LAW and LAW ( “ the ORG ” ) .

On DATE ORG dismissed the applicant 's appeal . It found that the applicant could not base his claim for admission to the farmers ' social security scheme on the LAW as the latter provided in LAW for statutory limitations on the rights of aliens . Similarly , ORG held that the DATE bilateral treaty concluded between GPE and GPE in matters of social security was applicable exclusively to employees . The applicant 's claim based on the ORG was also dismissed . ORG noted that LAW ORG included a provision on the right of everyone to social security . However , it held that the provisions of the LAW were not self - executing and left GPE a margin of discretion as to the manner of their implementation in domestic law .

The applicant lodged a cassation appeal against that judgment with ORG . On DATE ORG dismissed his cassation appeal , relying principally on the same grounds as ORG . Additionally , it observed that LAW provided that the right to social security was guaranteed only to NORP nationals .

In DATE the applicant requested the President of ORG to admit him to the farmers ' scheme as an exception to the existing rules . On DATE the President of ORG refused and informed the applicant that LAW expressly excluded the admission of non - NORP nationals to the scheme . That rule was applicable to farmers , their spouses and members of their household .

In DATE the applicant petitioned the ORG . On DATE the ORG wrote to the Minister of Agriculture , stating that discrimination on the ground of nationality in respect of the provision of social security to farmers was questionable in view of the obligations specified in the ORG . He requested the Minister to urgently prepare a relevant amendment to LAW . On DATE the Minister informed the ORG that amendments were being prepared . Those amendments would enable farmers of foreign nationality having permanent residence status in GPE to join the farmers ' scheme . It was envisaged that the amendments would enter into force on DATE . The applicant was informed of this by the ORG . However , the amendments were not enacted .

In DATE , in view of the prolonged uncertainty as to his social security cover , the applicant went to the GPE , where he obtained a job . From DATE to DATE the applicant was on sick leave and subsequently he has been in receipt of a sickness allowance .

On DATE the CARDINAL Act was amended in connection with GPE 's accession to ORG ( ORG ) . The amendments provided , inter alia , that nationals of ORG Member GPE and foreign nationals in possession of a residence permit could join the farmers ' scheme .

The European Social Charter DATE ( “ the GPE ” ) , which entered into force in respect of GPE on DATE , provides , as relevant :

“ The governments signatory hereto , being members of ORG , ...

Considering that the enjoyment of social rights should be secured without discrimination on grounds of race , colour , sex , religion , political opinion , national extraction or social origin ; ...

Have agreed as follows : ... ”

“ The Contracting Parties undertake , as provided for in Part III , to consider themselves bound by the obligations laid down in the following articles and paragraphs . ... ”

“ With a view to ensuring the effective exercise of the right to social security , the Contracting Parties undertake :

NORP to establish or maintain a system of social security ;

NORP to maintain the social security system at a satisfactory level at least equal to that required for ratification of FAC ( No . CARDINAL ) Concerning Minimum Standards of Social Security ;

to endeavour to raise progressively the system of social security to a higher level ;

NORP to take steps , by the conclusion of appropriate bilateral and multilateral agreements , or by other means , and subject to the conditions laid down in such agreements , in order to ensure :

a. equal treatment with their own nationals of the nationals of other Contracting Parties in respect of social security rights , including the retention of benefits arising out of social security legislation , whatever movements the persons protected may undertake between the territories of the Contracting Parties ;

b. the granting , maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Contracting Parties . ”

In accordance with LAW , GPE considered itself bound by a number of substantive provisions of the LAW , including LAW .

Article CARDINAL of the LAW reads :

“ CARDINAL . Any person within the jurisdiction of GPE shall enjoy the freedoms and rights guaranteed by LAW .

Exemptions from this principle with respect to aliens shall be specified by statute . ”

LAW provides :

“ A citizen shall have the right to social security whenever incapacitated for work by reason of sickness or invalidity as well as having attained retirement age . The scope and forms of social security shall be specified by statute . ”

NORP The social security scheme for farmers is regulated by ORG of DATE ( “ the DATE LAW ; ustawa o ubezpieczeniu społecznym rolników ) . At the relevant time section CARDINAL(CARDINAL ) of the DATE Act provided , in so far as relevant :

“ The social security [ scheme ] for farmers shall cover farmers of NORP nationality and NORP members of their household working with them . ”

The Social Security ( ORG and Members of LAW of DATE , which predated LAW , did not lay down a nationality condition .

The scheme set out in the DATE Act provides the following benefits : ( CARDINAL ) sickness and maternity benefit , ( CARDINAL ) benefit in respect of occupational injury and disease , and ( CARDINAL ) old - age and invalidity pension . It is operated by ORG ( PERSON ) , a specialised government agency which is subsidised by the ORG budget . Depending on the size of their farms , farmers are either required to join the scheme by law or may join at their own request . Each farmer admitted to the scheme is required to pay contributions to it , the amount of which does not depend on the size of the farm or the level of income from it . The precondition for admission to the scheme is to be an owner of a farm , regardless of whether farming is the main source of the farmer 's livelihood .

On DATE the CARDINAL Act was amended . The relevant amendment , which entered into force on DATE , broadened the range of farmers who could be admitted to the farmers ' social security scheme by , inter alia , including nationals of the ORG Member GPE and foreign nationals residing in GPE on the basis of a visa or a residence permit .

At the relevant time the rules governing the operation of the general social security scheme for employees were laid down in ORG of DATE ( ustawa o organizacji i finansowaniu ubezpieczeń społecznych ) . The LAW did not provide for any restrictions on admission to the general social security scheme on the basis of an employee 's nationality , with the exception of those aliens who did not reside permanently in the country or were employed by foreign diplomatic missions . On DATE the Act of CARDINAL DATE was repealed and replaced by ORG of DATE ( ustawa o systemie ubezpieczeń społecznych ) . However , the rule in respect of the admission of employees of foreign nationality to the general social security scheme remains the same .

In DATE GPE and GPE concluded LAW ( PERSON pomiędzy PERSON a PERSON o zabezpieczeniu społecznym ) . However , the provisions of that Convention were applicable exclusively to employees and other workers in comparable positions , as opposed to self - employed persons .


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

In DATE ORG instituted investigations in respect of a person or persons unknown on suspicion of aiding and abetting abortion . On DATE ORG ordered the interception of the applicant ’s telephone calls as he suspected him of having committed a criminal offence of aiding and abetting abortion .

On CARDINAL DATE the applicant was remanded in custody . He was released on an unspecified date after DATE of detention .

On an unspecified date the applicant appealed against the decision of CARDINAL DATE , submitting that the interception of his phone calls had exposed his family to harassment by the employees of the ORG telecommunications service . On DATE ORG upheld the contested decision , considering that it had been justified by the need to gather evidence in the proceedings . The recorded conversations had served as evidence , which enabled charges to be brought against the applicant . After the applicant was arrested , the interception of his phone calls was terminated on DATE .

By virtue of a judgment of ORG of DATE the applicant was found guilty on CARDINAL counts of aiding and abetting abortion in return for payment . He was also convicted of inciting one of the women who had had an abortion , ORG , to give false evidence . The applicant was sentenced to CARDINAL and a half years’ imprisonment and a fine of MONEY ( ORG ) was imposed on him .

The court established that from DATE the applicant had been regularly placing advertisements in the local newspaper : “ Gynaecologist - inducing periods ; call after TIME ” , and giving a phone number of a flat owned by him . Numerous women had telephoned him . He offered a service of taking them by his car to a hospital in GPE in GPE , where abortion remained legal , for a fee of MONEY . He had travelled to GPE CARDINAL times , on various dates from DATE until CARDINAL DATE , with CARDINAL women who had had abortions in the local hospital . The court relied on the testimony of QUANTITY witnesses , including the QUANTITY women concerned , the staff of the newspaper in which the applicant had placed his advertisements , the persons living in his flat where he had been taking the phone calls , and other persons living in the neighbourhood . The court also relied on numerous documents in the case - file . As regards the charge of inciting ORG to give false evidence , the court relied on the transcripts of the applicant ’s conversation with her , in which he had suggested that she tell the court that she travelled to GPE to visit her family . The court further considered that the transcript of the CARDINAL conversations was consistent with the evidence that this witness had given in the court .

The applicant appealed against that judgment . He submitted , inter alia , that the court had committed an error of fact in that it had failed to order expert medical opinions to establish whether the health of the women concerned had been such as to justify abortion under the law as it had stood at the material time . It was further argued that the court had failed to establish whether the women concerned were in a “ difficult personal situation ” within the meaning of ORG , and LAW . The court had limited its considerations in this respect to the women ’s financial situation , entirely overlooking all other aspects of what could legitimately be understood as their “ personal situation ” . The term “ personal situation ” should have been interpreted as referring to a woman ’s situation as a whole , including her subjective feelings . Regard should have been had to the particularly delicate situation of a woman in an unwanted pregnancy , often confronted with the hostility of her environment and having to cope with prejudices and negative opinions in respect of unmarried mothers . Only through a full assessment of all such circumstances could it be established whether the women in the instant case were in a difficult personal situation such as to render voluntary termination of pregnancy lawful under the provisions of the LAW . Lastly , the applicant argued that the lower court did not have any credible evidence on which to convict him of inciting ORG to give false evidence .

On DATE ORG upheld the contested judgment . The court considered that there was in fact evidence concerning the charge of inciting ORG to give false testimony , namely the transcript of the telephone conversations between her and the applicant on CARDINAL DATE and CARDINAL DATE , numbered CARDINAL and CARDINAL . As to the health of the women who had had abortions , the court observed that there were no indications that the applicant had been interested in their health when he had offered his services . Therefore it could not be accepted that their health could have been such as to amount to a fact justifying the abortion within the meaning of the LAW then in force , or that the applicant had himself had any regard to this factor . Insofar as the applicant argued that the lower court had failed to establish whether the women were in a “ difficult personal situation ” , the court considered that the assessment made by the lower court was not arbitrary and that it was compatible with ordinary life experience .

The applicant lodged a cassation appeal with ORG . submitting complaints similar to those advanced in the appeal against the first - instance judgment . On DATE ORG dismissed the cassation appeal as manifestly ill - founded .

Subsequently , the applicant applied to ORG of ORG to grant him a stay of execution of the sentence as his health necessitated continuous medical care . On DATE the court granted him a stay of execution . On an unspecified date the applicant applied again for a stay of execution of the sentence and on DATE ORG refused , holding that there were no indications that the serving of a prison sentence would entail any deterioration of his health . Subsequently , the applicant applied to ORG to reopen the criminal proceedings in his case , submitting that ORG had , at his request , instituted criminal proceedings against witnesses who had testified in his case as their testimony had allegedly been false . Simultaneously , he applied for a stay of execution of the sentence .

On DATE ORG refused to grant him a stay of execution .

On an unspecified later date the applicant appealed against the ORG decision of DATE and on DATE ORG granted him a stay of execution of the sentence until DATE . Apparently , the applicant submitted further applications for a stay of execution and they all were refused .

On an unspecified date the applicant requested ORG to set a date for the in respect of his application to reopen the proceedings in his case . On DATE he was informed in reply that the hearing could not be held until the final decision was given in the criminal proceedings against witnesses , as the decision was of significant importance for the decision on the reopening of the proceedings .

On an unspecified date ORG discontinued the proceedings against the witnesses , finding that they had no case to answer . The applicant appealed against that decision and LOC ordered his appeal to be considered by ORG .

LAW , applicable at the material time , provided that the prosecutor or the court was empowered to order that telephone communications , which could be of potential relevance to criminal investigations , be intercepted . The service of such a decision on the accused could be postponed for a specific period , considered necessary in the interest of the investigations .

Under the Minister of ORG ’s Order of CARDINAL DATE on the interception of phone calls , recordings of telephone conversations were to be made on the basis of the prosecutor ’s or court ’s order , within the time - frame and scope specified in that order .

A woman ’s right to seek an abortion was introduced in GPE in DATE . DATE until DATE voluntary termination of pregnancy on social grounds was in practice allowed .

ORG , and Conditions Permitting Pregnancy Termination Act was subsequently adopted by ORG on DATE . It seriously limited the grounds on which abortion could be sought . On DATE an amended text of the Act entered into force . The law as amended provided that pregnancy could be terminated only in the following cases : where pregnancy endangered the mother ’s life or health ; whre pre - natal tests or other medical findings indicated a high risk that the foetus could be severely and irreversibly damaged , or be suffering from an incurable life - threatening disease ; where there were strong grounds for arguing that the pregnancy was a result of criminal activity ( rape or incest ) ; or where the mother was in a difficult personal situation .

On DATE ORG ruled that LAW , making human life in its pre - natal stage dependent on the decision of the legislative , did not comply with LAW . That provision stated that GPE was a democratic state ruled by law and implementing the principles of social justice . ORG held that LAW was incompatible with LAW , which proclaimed the principle that marriage , motherhood and the family were to be placed under the protection and care of GPE The Court held that the provision in issue infringed the constitutional guarantees for the protection of human life at each stage of its development .

As a result , further amendments were made in DATE to the text of ORG , and LAW of DATE . In particular , the right to terminate pregnancy where the pregnant woman was in a difficult was abolished . A pregnancy that risks a woman ’s life or health , or where the child suffers from a genetic malformation , may only be terminated by a physician in a public health - service institution . A physician other than the one who is to perform the operation must issue the certificate confirming the risk to a woman ’s health . If the pregnancy resulted from criminal activity , it may only be terminated by DATE and the prosecutor is required to issue a certificate stating that it is probable that the pregnancy is the result of a crime .

Termination of pregnancy in situations other than those stipulated in ORG , and LAW is now a criminal offence punishable by imprisonment for DATE . The person performing the abortion is held criminally responsible , whereas the woman herself is not .


Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE . Before being imprisoned the applicant lived in GPE , GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr N. Kulchytskyy .

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

On DATE the applicant and CARDINAL accomplices attacked and robbed Mr PERSON , PERSON and PERSON . in their home .

On DATE the applicant was arrested by police officers after being identified by PERSON

On CARDINAL DATE the ORG ( “ the ORG ” ) found the applicant guilty of robbery and sentenced him to DATE and CARDINAL months’ imprisonment , with confiscation of his property . The applicant was represented by CARDINAL lawyers in those proceedings .

On DATE and CARDINAL DATE ORG ( “ the Court of Appeal ” ) and ORG , respectively , upheld the judgment of CARDINAL DATE .

On DATE ORG , in the course of civil proceedings , ordered the applicant to pay CARDINAL NORP hryvnias ( ORG ) in respect of pecuniary damage and UAH CARDINAL,CARDINAL in respect of non - pecuniary damage in favour of PERSON and PERSON in compensation for the crime he had committed against them .

On DATE the applicant appealed against that judgment . The appeal was handwritten .

On DATE ORG remitted the appeal to ORG for a decision on whether it had been prepared in accordance with the procedural requirements .

On DATE ORG found that the applicant ’s appeal had not been properly submitted . The court noted , in particular , that the appeal had not been typewritten ; it did not contain the necessary information about the other parties to the proceedings ; it was not sufficiently reasoned ; no copies thereof had been enclosed for the other parties ; and the court fee for lodging an appeal had not been paid . The court therefore invited the applicant to rectify those shortcomings by DATE .

On DATE ORG found that the applicant had not rectified the shortcomings in his appeal and returned it to him unexamined .

On DATE the applicant submitted a new appeal against the judgment of DATE . The appeal was again handwritten . No evidence was enclosed suggesting that the applicant had paid a court fee , and the applicant did not request exemption from payment of the court fee .

On DATE ORG returned the appeal to ORG and suggested that it consider whether any steps should be taken to provide the applicant with the requisite facilities to prepare his appeal in accordance with the procedural formalities .

On DATE the applicant signed an agreement with lawyer PERSON according to which that lawyer was to assist him in his criminal case .

On DATE ORG extended the time - limit for appealing against the judgment of DATE and accepted the applicant ’s appeal . That hearing was attended by lawyer PERSON

On an unspecified date the case was sent to ORG .

On CARDINAL DATE ORG found that the applicant ’s appeal was again not typewritten . It therefore refused to open appeal proceedings and returned the case file to ORG .

The relevant provisions of LAW of DATE ( effective until DATE , the date when the Code of Civil Procedure of CARDINAL DATE came into force ) can be found in the judgment of PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

On DATE the NORP Town Court of the Voronezh Region granted the applicant ’s claim against ORG and awarded her MONEY ( RUR ) for pension arrears .

The judgment was not appealed against and entered into force . On DATE a writ of execution was issued .

The judgment was executed on DATE .


Anatoly Kovler;George Nicolaou;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant , Mr PERSON GPE , is a NORP national who was born in DATE and lives in the town of GPE Novgorod . He was represented before the ORG by PERSON , Mr PERSON and Mr PERSON , lawyers practising in GPE .

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

On DATE ORG of LOC of GPE Novgorod registered the applicant for compulsory military service and scheduled a medical examination of him by a medical panel comprising a number of specialists in order to determine whether he was fit to serve . With the medical panel finding him fit to perform military service , the applicant was drafted into the army and sent to military unit no . CARDINAL in GPE Tagil .

In DATE the applicant and CARDINAL other conscripts were sent for DATE of training with military unit no . CARDINAL in the village of GPE , GPE . According to the applicant , almost immediately upon arrival at that military unit he became the subject of ill - treatment and humiliation by senior conscripts . The treatment included sleep and food deprivation , acts of violence , excessive physical exercise , threats , extortion ( including that of money , food and personal belongings ) , insults and orders to commit theft within the military unit ’s LOC or in nearby villages . Similar acts of violence and degrading treatment continued upon the applicant ’s return to military unit no . CARDINAL in DATE .

On DATE a senior soldier , sergeant PERSON , woke the applicant up at TIME and ordered him to clean the floors of the barrack ’s lavatories . In response to the applicant ’s refusal , sergeant PERSON took him outside , ordered him to put on a military hat , having , beforehand , turned it inside out so that the metal cockade on the hat would press against the applicant ’s forehead , and allegedly punched him on the head a number of times , leaving an impression of the cockade on the applicant ’s forehead . Although the applicant felt extreme pain and was feeling dizzy and disoriented for DATE after the incident , he did not seek medical assistance , considering that to be futile . According to the applicant , the incident on DATE was not the first occasion on which sergeant PERSON had acted violently towards him . For instance , DATE before the events on DATE sergeant PERSON had also hit the applicant when the latter had refused to make coffee for him .

On DATE the applicant was granted leave to stay in town with his parents , who had come to visit him . Having noticed the applicant ’s poor state of health , on DATE his mother took him to a private hospital , ORG , where , following an ultrasound scan of his kidneys and abdominal cavity and an examination by a neurologist , to whom the applicant complained of severe headache and dizziness , the applicant was diagnosed with the residual effects of concussion and mild diffuse changes in the liver . No injuries were , however , recorded on his body . Having been questioned by the doctor about the cause of the concussion , the applicant explained that he had hit his head against a propeller shaft when cleaning military equipment DATE before the medical examination .

On DATE the applicant was admitted to the gastroenterological department of ORG . The applicant submitted that his doctors had misinterpreted the symptoms of concussion , such as vomiting and dizziness , considering that he had been suffering from an intestinal disease . He was released from the hospital DATE .

Having again been subjected to mockery on his return to the military unit , the applicant left the unit without authorisation when his parents came to visit him on DATE .

DATE the applicant lodged a complaint with the military prosecutor of ORG , seeking the institution of criminal proceedings against his commanding officers and senior conscripts .

Having heard the applicant and his mother , having interrogated the personnel of the military unit and conscripts who had come into contact with the applicant and having requisitioned medical records describing the applicant ’s state of health , on DATE the prosecutor refused to open a criminal case in the absence of any evidence of ill - treatment .

On DATE ORG of the ORG PERSON examined the applicant ’s appeal against the decision of CARDINAL DATE and dismissed it as unfounded . ORG studied the materials of the prosecutor ’s inquiry and the applicant ’s medical history and heard the prosecutor and witnesses , including the alleged perpetrators and the doctors . It endorsed the prosecutor ’s conclusion that there was no evidence of ill - treatment : all of the witnesses had denied subjecting or having seen the applicant being subjected to acts of violence or psychological pressure and there was no medical evidence , save for the medical certificate of DATE , documenting signs of possible violence . The court noted , in particular , that DATE medical examinations of soldiers had been performed in the military unit and that injuries had never been discovered on the applicant ’s body . Relying on medical expert testimony , the court stressed that the diffuse changes discovered in the applicant ’s liver during the examination in the private hospital were linked to illnesses of the digestive system . As to the alleged residual effects of concussion , the court found no reason to doubt the applicant ’s statement given to the doctors that he had hit his head against a propeller shaft .

Having been properly informed of the hearings before ORG of the ORG FAC , the applicant did not attend .

On DATE ORG of ORG dismissed the applicant ’s appeal against the judgment of CARDINAL DATE , having fully endorsed the lower court ’s reasoning . At the same time , the appellate court laid particular emphasis on the applicant ’s inconsistent description of events and the fact that , having had an opportunity to freely complain to the doctors in the private hospital , he had explained his alleged concussion as an accident .

Without providing the ORG with a copy of the decision or indicating when the decision had been issued , the applicant submitted that the prosecutor ’s decision of DATE had been quashed by a higherranking prosecutor while the appeal proceedings before ORG of ORG had still been pending . According to the applicant , the new round of the investigation had also ended with a decision not to open a criminal inquiry in view of a lack of criminal conduct .


The applicant is a NORP national , born in DATE and currently detained in FAC . He is represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE a naked female body was found dead on the seashore in GPE , a city on the LOC . The same day an autopsy was conducted on the body from which hair and blood samples were taken . On DATE the body was identified as ORG , the wife of a retired colonel . The police was informed that she had been staying at the military ORG guesthouse in GPE . The ensuing investigation led to the arrest of the applicant and his CARDINAL friends ( C. and PERSON ) , who were carrying out their military service as receptionists at the ORG guesthouse .

In his police statement , dated DATE , the applicant confessed that he had been involved in the killing of PERSON , and gave a detailed account of the events . He stated that together with his friend PERSON , they had raped the victim , who had been staying alone in the guesthouse . He further stated that they had killed her , when she threatened to file a complaint against them .

On DATE the police conducted a survey on the scene of the crime together with the applicant and the other accused persons , and the applicant showed where they had hidden the victim ’s personal belongings . A knife was found in the basement , on which there was a thread of hair . The applicant also indicated a piece of cloth stuck on the barbed wire surrounding the guesthouse , which had been torn from the victim ’s dress as they carried her to the shore . The hair on the knife was later found to be identical to that of the victim . This survey was recorded on videotape .

On DATE the applicant repeated before the public prosecutor the statement he had given to the police . The attorney of the other co - accused , C. , was present during the interrogation by the public prosecutor . The same day , the applicant was placed in detention on remand .

On DATE after the identification of the victim ’s body , ORG destroyed the blood and hair samples taken from her body . He further declared lack of jurisdiction and transferred the case file to ORG , as the applicant was a soldier in ORG .

On DATE the ORG initiated criminal proceedings in ORG against the applicant and the other CARDINAL co - accused and charged them with rape and murder . The prosecution requested that the applicant be sentenced to death pursuant to Sections CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW .

Before the court , the applicant gave a different account of the events and blamed the other co - accused , C. , for the alleged offences . According to the applicant ’s defence , on TIME of the incident , the applicant ’s friend PERSON told him that he wanted to have sexual intercourse with the victim , who had been staying alone in the guesthouse for DATE . Together they entered the victim ’s room from the balcony window , where ORG attempted to rape her . Frightened of being caught by the police , PERSON told the applicant that they should kill the victim . According to the applicant , at that point , the victim lost consciousness . The applicant and C. carried the victim from her room to the shore , where she regained consciousness and started to struggle with the attackers . C. stabbed her in the back and the applicant also stabbed her . According to the applicant ’s statement , when they returned to the guesthouse , C. collected the victim ’s personal belongings , including her jewellery , from her room . The applicant further confessed before the court that he had taken a bracelet and a necklace belonging to the victim .

Moreover , the applicant denied his statement taken by the police and alleged that he had been subjected to ill - treatment during police custody . He further maintained that during his interrogation by the public prosecutor , he had been told to repeat his police statement .

The court further took oral evidence from the other CARDINAL defendants , and they also confessed being involved in the alleged offences . In his statement , PERSON maintained that he had been working at the reception at the time of the incident . He stated that , a day before the incident , he had heard the applicant say that he wanted to rape PERSON In his statement PERSON further explained that he had not seen the other CARDINAL defendants entering the victim ’s room , but had seen them carrying the victim from the guesthouse to the seashore . He confessed that he had helped them carry the victim out of the guesthouse , and that the other CARDINAL had then carried her to the shore . PERSON stated to the court that when they came back after TIME later , their clothes were wet and the applicant was holding a screwdriver and a knife . He further stated that , as he was scared , he did not talk about this incident with anyone .

The applicant requested the court to take oral evidence from the victim ’s husband . On DATE the court refused the applicant ’s request on the ground that the victim ’s husband was not an eye witness to the crime in question and that his testimony would not in any way have an effect on the elucidation of the case .

On DATE a survey of the crime area was conducted by order of the military court .

On DATE ORG , in view of the GPE confessions , the autopsy report , the survey of the crime scene , the blood sample tests and the incident reports , established the facts as follows . The applicant and his friend PERSON , who had planned to rape the victim , entered the victim ’s room from an open balcony window , leaving PERSON in the reception to watch out . When they entered the room , they found the victim asleep and put a pillow over her head to prevent her from screaming , and then they raped her . When the victim started shouting , the CARDINAL friends decided to kill her to prevent her from filing a complaint . They first tried to strangle ORG with a bathrobe belt , at which point she lost consciousness . Then they took her to the seaside , trying to drown her in the sea . However , the victim gained consciousness and tried to run away . Consequently , they started punching and hit her on the face with a stone . The applicant also stabbed the victim in her back with a screwdriver , whereas C. stabbed her with a knife in the stomach . Then C. tried to kill the victim by cutting her aorta . When ORG died , ORG slashed the victim ’s face in order to prevent the identification of the body . Then , leaving the body on the shore , they returned to the guesthouse . They packed the victim ’s personal belongings , took her jewellery and hid them in the basement of the building . Accordingly , the court found it established that the applicant had acted with premeditation in order to rape ORG and had then killed her to avoid being caught by the police .

ORG also held that the applicant ’s allegations of ill - treatment in police detention were unsubstantiated , as there was no evidence in support of these allegations . The court further stated that the applicant had repeated his confession before the public prosecutor in the presence of a lawyer and had not complained about ill - treatment .

Consequently , ORG convicted the applicant as charged and sentenced him to death .

The applicant appealed and ORG held a hearing and examined the case once again . On CARDINAL DATE ORG dismissed the applicant ’s appeal , finding the first - instance court ’s establishment of the facts and evaluation of evidence in line with the domestic and general principles of law .


Violation of Art. 5-4;Costs and expenses award - Convention proceedings

ORG Mr. PERSON , an NORP businessman born in GPE Aires in DATE , had for DATE been resident with his wife and their CARDINAL children in GPE ( GPE ) . He was arrested in GPE with a view to being extradited but objected to his extradition and applied for provisional release , as described below .

ORG On instructions from ORG ( " the ORG " ) , the GPE cantonal police arrested the applicant in GPE during TIME and immediately transferred him to LAW prison in GPE .

The authorities of GPE had sent radio - telegrams to the authorities of ORG on DATE asking for help in identifying the CARDINAL persons thought to be responsible for kidnapping a NORP banker , K , in GPE Aires on DATE . The kidnappers had demanded a ransom and had required ORG wife and sister to go first to GPE , then to GPE - where the money was placed by them in an account opened in their name with the ORG - and then to GPE .

ORG In a radio - telegram dated CARDINAL DATE , ORG requested the provisional arrest of the suspects with a view to extradition . On DATE , the ORG accordingly issued a warrant for Mr. PERSON GPE ’s arrest , and this was served on him on DATE .

ORG On DATE , ORG in GPE confirmed ORG ’s request for the arrest of the CARDINAL NORP nationals . In " notes verbales " dated DATE , DATE and CARDINAL May , it produced various supporting documents . Together , these notes and documents constituted a formal extradition request .

ORG In a letter of CARDINAL DATE , the ORG forwarded the documents received to the GPE authorities , for consideration at the hearing of the applicant . Copies were sent to the latter ’s lawyer and to ORG ( " the Public Prosecutor " ) . On DATE , ORG suggested that the ORG officially inform the NORP authorities of offences of receiving stolen goods which Mr. PERSON - GPE was charged with having committed in GPE , but he pointed out that they had not given rise to any penalties in that country . He refused to institute proceedings in GPE , and on DATE ORG of the GPE decided that there were no grounds for opening an investigation there .

ORG At the hearing held in the meantime , which was attended by his lawyer , the applicant had indicated his refusal to be extradited . In a letter of DATE , the ORG gave the lawyer until DATE to state the reasons for his client ’s objections . It extended this time - limit to CARDINAL DATE and subsequently to DATE .

ORG In the meantime , on CARDINAL DATE , ORG submitted letters rogatory to the ORG concerning the kidnapping of an NORP financier , C , in GPE Aires on DATE , for which the same group of persons was thought to have been responsible . The letters rogatory were executed in GPE on DATE . By " notes verbales " dated CARDINAL , DATE and DATE , the ORG formally submitted a second request for the extradition of Mr. PERSON - GPE , among others .

ORG On DATE , the ORG instructed the GPE cantonal authorities to hold a second hearing on the applicant ’s extradition , this time on the basis of the documents relating to the kidnapping of C. At the hearing the applicant continued to resist extradition .

ORG On DATE , Mr. PERSON - GPE ’s lawyer sent the ORG a memorandum setting out the reasons for the applicant ’s objection to being extradited ( see paragraph CARDINAL above ) . The reasons included the following : the documents submitted in support of the extradition request did not satisfy the formal requirements laid down in the Convention on the Extradition of Criminals between GPE and GPE ( see paragraph CARDINAL below ) , since they contained no description of the offences with which the applicant was charged ; as regards the CARDINAL kidnappings of which he was accused by the NORP authorities , which were moreover of a political character , Mr. PERSON - GPE was innocent ; if extradition was granted , it would be contrary to Articles CARDINAL and CARDINAL ( article CARDINAL , article CARDINAL ) of LAW , as it would expose the applicant to inhuman treatment and he would have no guarantee of a fair trial .

ORG On DATE , ORG ( CARDINALst ORG ) accepted Mr. PERSON GPE ’s objection and accordingly decided not to authorise his extradition . It was of the opinion that " the overall circumstances [ gave it ] serious reason to fear that the treatment which might be accorded to the objectors by the requesting ORG , either before judgment or during the enforcement of sentence , would violate the rules governing respect for human rights " . The ORG further decided that the offences mentioned in the extradition request should , with CARDINAL exception , be the subject of a prosecution and trial by the appropriate GPE cantonal authorities , pursuant to Article PERSON , first paragraph , of ORG . Lastly , it directed that the applicant be kept in detention with a view to extradition until the GPE authorities had ruled on his detention on remand in the criminal proceedings that were to be instituted .

ORG On DATE , ORG ordered that a criminal investigation be opened against Mr. PERSON - GPE and the investigating judge preferred charges of , inter alia , attempted extortion against him . As a result , the detention with a view to extradition was transformed into detention on remand .

ORG On DATE , ORG of ORG instructed the GPE cantonal authorities to prosecute the applicant and bring him to trial .

On DATE , the applicant admitted the charges of attempted extortion and blackmail in the K case ( see paragraph CARDINAL above ) . On DATE , ORG of the GPE of GPE ( CARDINALst ORG ) sentenced him on these charges to imprisonment for DATE and DATE , subject to deduction of DATE he had spent in detention on remand .

ORG Having been put under a regime of semi - liberty , the applicant absconded in DATE . During his detention with a view to extradition , he had on CARDINAL occasions applied for release .

ORG On DATE , Mr. PERSON - GPE and his wife , who had been arrested at the same time and for the same reasons as he had , had requested the ORG to order their provisional release . On DATE , the ORG accepted the request submitted by Mrs. PERSON - GPE on payment of a surety of CARDINAL GPE . In order to facilitate his wife ’s release , the applicant had withdrawn his own request .

ORG On DATE , Mr. PERSON - Reisse made a fresh request to the ORG , arguing : that for DATE he had been detained with a view to his extradition , whereas he had objected to the latter measure ; that he was not guilty of the offences with which he was charged by the NORP authorities ; that the evidence submitted by them was manifestly inadequate ; and that his state of health had seriously worsened as a result of his detention .

ORG On DATE , the ORG informed the applicant ’s lawyer that it had decided not to grant the request , which would consequently be passed to ORG ( see paragraph CARDINAL below ) . It considered , in the light of information provided by the medical service of Champ - Dollon prison , that the medical supervision and psychiatric treatment being undergone by the applicant were compatible with his remaining in custody . It drafted a CARDINAL-page report for ORG on the CARDINAL NORP suspected of the kidnapping of K , together with an aide - mémoire .

ORG On DATE , the ORG forwarded the request for release to ORG , together with the CARDINAL documents referred to above , " so that a decision could be given by a court in accordance with Article CARDINAL para . CARDINAL ( article CARDINAL ) of LAW " . At the same time it expressed a negative opinion on the request since release did not seem to it to be " required by the circumstances " , within the meaning of section CARDINAL of LAW of DATE on ORG ( see paragraph CARDINAL below ) .

ORG On DATE , ORG rejected the request . Mr. PERSON - GPE was notified of the operative provisions of the decision on the following day and of the reasons therefor on DATE . ORG took several factors into consideration : the extradition request submitted by the NORP authorities concerned not only the kidnapping of the NORP banker K but also that of the NORP financier C , and the possibility that the applicant had been involved in CARDINAL of these cases could not be ruled out ; there was a real risk that he might abscond since he resided in GPE and not in his country of origin ; he had not shown that he was unfit to undergo detention and , furthermore , he could obtain the assistance of a doctor in case of need .

ORG In the meantime , on DATE , Mr. PERSON - Reisse had written to the Presidents of ORG and to ORG requesting immediate release . On DATE , a President of ORG said that it was for ORG to give a ruling on requests for release submitted by a person who was detained with a view to extradition . On DATE , the applicant ’s lawyer replied that the proceedings in ORG were entirely in writing and that the ORG had taken DATE to reach a decision . The requirements of LAW CARDINAL ( article CARDINAL ) had not been complied with : in particular , the detainee had not appeared in person and a decision had not been rendered speedily . The lawyer therefore confirmed the request for release and asked ORG to give an interpretation of the provision in question . In a letter dated DATE , the CARDINAL presiding judges of ORG stated that it was not competent to deal with the applicant ’s release as he had been detained with a view to extradition under a Federal arrest warrant .

ORG On DATE , Mr. PERSON - GPE submitted a further request for release to the ORG ; he claimed that release was justified because of his deteriorating health and he supplied CARDINAL medical certificates . Although the first of these , dated DATE , stated that he could still be cared for by the prison authorities , the second , dated DATE , reported progressive deterioration : " The lack of a frame of reference in < the applicant ’s > current surroundings is conducive to the development of his paranoid ideas and problems in evaluating reality . "

ORG The request was received by ORG on DATE , DATE It had just finished investigating the extradition request and therefore passed the complete file to ORG on DATE . It did not enclose any opinion , but on DATE the ORG requested it to submit CARDINAL within DATE .

ORG The President of the CARDINALst ORG also informed the applicant ’s lawyer that the ORG had been asked for information about the request for release .

ORG On DATE , ORG rejected the request , as the ORG had recommended in an opinion of DATE : the ORG took the view that Mr. PERSON - Reisse had provided no new material important enough to warrant making a decision different from that of CARDINAL DATE ( see paragraph CARDINAL above ) . This decision was notified on DATE .

ORG The procedure for extradition between GPE and GPE is governed in the first instance by a bilateral treaty and , subsidiarily , by municipal law .

The Convention on the Extradition of Criminals between GPE and GPE , signed on DATE , has been binding on both countries since DATE . It lays down the formal and substantive conditions applying to extradition between the CARDINAL countries but does not , either expressly or tacitly , deal with the methods to be used by the courts for supervising detention with a view to extradition . It is therefore NORP law which applies on this point . At the time of the facts in question and until DATE , the instrument applicable was an Act of DATE .

ORG LAW of DATE on ORG ( " LAW " ) instituted a sharing of powers in the field in question between ORG ) ( which , for obvious practical reasons , had delegated its powers to ORG ) and ORG , the only judicial authority in GPE with jurisdiction in extradition matters .

ORG It was to the ORG that requests for provisional arrest with a view to extradition and formal extradition requests were addressed . The ORG corresponded directly with the accredited diplomatic missions in GPE - without necessarily going through ORG - and with ORG and the national central offices of ORG . It decided whether there was a case for arresting the wanted person and , if so , served on that person a " warrant for arrest with a view to extradition " , which was immediately enforceable throughout NORP territory .

Once the person had been arrested , it was the ORG which conducted the proceedings . It ordered that he be heard by the appropriate cantonal authorities on the extradition request , appointed counsel to represent him if necessary , corresponded with the lawyers involved and informed them of the time - limits to be observed , checked the detainee ’s mail and granted or refused him the right to be visited , authorisation to make telephone calls , and so on .

Above all , it was the ORG itself which , in most cases , ruled on extradition requests and requests for provisional release .

The former power ( to rule on extradition requests ) was conferred by LAW and was exercisable where " the arrested individual [ had ] indicated his consent to his being handed over without delay and ... there [ was ] no legal impediment to his extradition , or ... he [ had ] opposed it only on grounds not based on [ DATE ] Act , on the LAW or a declaration of reciprocity ... " .

The second power ( to rule on requests for provisional release ) was conferred by LAW , second paragraph , and was exercisable in all cases where the matter had not been referred to ORG . The ORG could grant release if this appeared to be required by the circumstances ( section DATE , first paragraph ) .

Furthermore , whenever ORG was to give a ruling , the ORG carried out the requisite investigations . If the ORG refused to authorise extradition , the ORG was bound by that decision . On the other hand , if the ORG authorised extradition , the ORG could still , for important reasons of political expediency , refuse to extradite the person concerned .

Lastly , it was for the ORG to give instructions for the handing over of the person extradited , arrange the practical details and inform the foreign ORG of the action taken on its request .

ORG was involved in extradition proceedings in CARDINAL sets of circumstances .

If the arrested person protested against the extradition itself by raising an objection based on the LAW , a treaty or a declaration of reciprocity ( section CARDINAL ) , ORG was competent to rule on the merits of the extradition ( section CARDINAL ) , if necessary after ordering additional investigations ( section CARDINAL , second paragraph ) and the personal appearance of the detainee ( section CARDINAL paragraph ) . In the latter event - which was very rare - , the hearing took place in public , unless there were serious reasons to the contrary ( section CARDINAL paragraph ) , and the detainee could be assisted by a lawyer , assigned by the court if need be .

Where the case had been referred to it ( section CARDINAL , second paragraph ) , i.e. if an objection related to the extradition itself , ORG was also responsible for ruling on any request for provisional release lodged by the person who was detained with a view to extradition . It could authorise his release if it appeared that the circumstances so required ( section CARDINAL , first paragraph ) .

ORG In a report to ORG in DATE , ORG drew attention to a number of shortcomings in GPE from the point of view of LAW which it was contemplating ratifying :

" Persons provisionally arrested on the orders of ORG and Police , in compliance with the wishes of the requesting ORG , have no right of appeal to a court against the decision to arrest them . LAW is , however , being revised , and it is planned to take this opportunity to provide for an appeal to a court against arrests , in accordance with LAW CARDINAL ( article CARDINAL ) of the LAW . " ( Federal Bulletin , DATE , vol . II , pp . DATE )

ORG The ORG ratified the Convention on DATE . Although declared inadmissible by ORG on DATE ( ORG and Reports no . CARDINAL , pp . CARDINAL ) , the GPE v. GPE application ( no . CARDINAL/CARDINAL ) revealed that the extradition law fell short of the requirements of LAW CARDINAL ( article CARDINAL ) . The Government considered that , pending the entry into force of a new LAW on international mutual assistance in criminal matters , it should adopt a solution that would meet any difficulty encountered . Taking as its basis the fact that Article CARDINAL para . CARDINAL ( article CARDINAL ) was directly applicable in GPE , ORG and Police took the initiative of exchanging views with ORG . By an exchange of ( unpublished ) letters dated DATE , DATE , DATE and CARDINAL DATE , the CARDINAL institutions agreed to interpret sections CARDINAL of the Act , in particular the second paragraph of LAW , in such a way as to establish the general and exclusive jurisdiction of ORG ( CARDINAL ) to rule on any objection lodged against arrest with a view to extradition ( from then on this legal remedy was expressly mentioned on the back of the arrest warrant , receipt of which had to be acknowledged in writing by the person concerned ) , and ( CARDINAL ) to rule on any request for provisional release , even when , by reason of the absence of any objection to the request for extradition , ORG had no jurisdiction over the merits of the matter .

ORG The transitional arrangements introduced as a result of the exchange of letters were enshrined in LAW of DATE on ORG ( " the DATE LAW ) , which came into force on DATE , that is after the conclusion of the proceedings at issue in the present case . ORG of ORG rules not only on appeals against warrants for arrest with a view to extradition ( section CARDINAL paragraph , taken in conjunction with section CARDINAL , first paragraph ) but also on appeals against any decision by the ORG refusing provisional release ( section CARDINAL , fourth paragraph ; judgment of DATE , ORG of ORG , vol . CARDINAL , part IV , p. CARDINAL ) .

As regards extradition itself , the ORG is now competent to rule at first instance ( section DATE , first paragraph ) . If , however , the person concerned claims that he " is being proceeded against because of a political offence " or if " the investigation gives serious grounds for thinking that the offence is of a political character " , the decision rests with ORG ( section CARDINAL , second paragraph ) .

The ORG ’s decision can be challenged in ORG by way of an administrative - law appeal ( section CARDINAL paragraph ) .