Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - financial award

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

The applicant arrived in GPE as a member of the ex - GPE armed forces located in the territory of GPE . On an unspecified date in DATE he and PERSON , a NORP citizen , started living together in de facto partnership . In DATE a child was born to the applicant and his partner .

After the military forces were withdrawn from GPE , the applicant resided there DATE and DATE on the basis of a temporary residence permit . On DATE , upon the expiry of the residence permit , he left GPE .

DATE the applicant visited GPE CARDINAL times on the basis of a visa . The validity of the last visa expired on DATE but the applicant continued to reside in GPE illegally .

On DATE the applicant was apprehended by the police and taken into custody on suspicion of having committed robbery and criminal proceedings were initiated against him and CARDINAL co - accused persons .

On DATE the applicant was brought before a judge of ORG of GPE who decided to detain him on remand . The judge filled in a standard form by typing in DATE , the names of the court and the applicant and other details of the case . In substantiating the decision , the judge had to choose from and underline the pre - typed text of the standard form . She took into account the severity of the crime the applicant was suspected of , the danger of his possible absconding and the possibility that he could impede the investigation . However , the judge did not underline the pre - typed text as to whether or not a preventive measure should be imposed on the applicant . He did not appeal this decision .

On DATE the applicant was officially charged with robbery .

NORP On DATE , DATE , DATE and CARDINAL DATE a judge of ORG of GPE , on the request of the prosecutor in charge of investigation , extended the applicant 's detention on remand until DATE , CARDINAL DATE , DATE and DATE respectively . The applicant was not brought before the judge . The decisions were drafted using a standard form and repeated from CARDINAL decision to the next the same grounds in the same words , i.e. the severity of the crime the applicant was charged with , the danger of his possible absconding and the possibility that he could impede the investigation . The applicant did not appeal any of these decisions .

On DATE the prosecutor in charge of investigation and the applicant discussed the possibility of releasing him on bail .

On DATE , according to the prosecutor 's permission , the applicant and his partner met in order to discuss the details of the applicant 's release on bail without reaching any agreement in this respect .

On DATE , DATE , DATE , DATE and DATE a judge of LOC , on the request of the prosecutor in charge of investigation , extended the applicant 's detention on remand until DATE , DATE , DATE , DATE and DATE respectively . The applicant was not brought before the judge . The decisions were drafted using a standard form and repeated , from CARDINAL decision , the same grounds and in the same words , i.e. the severity of the crime the applicant was charged with , the danger of his possible absconding and the possibility that he could impede the investigation . The applicant did not appeal any of these decisions .

On DATE the applicant was given access to the case file in order to take cognisance of its contents , which he completed on DATE .

On DATE the last of the co - accused persons completed the reading of the case file .

On DATE the investigating prosecutor PERSON informed all accused persons that the examination of the case file had been completed . The prosecutor , considering the fact that the applicant resided in GPE illegally , the danger of his possible absconding and the possibility that he could impede the investigation , refused the applicant 's request to alter the preventive measure imposed on him . The applicant did not appeal this decision . On DATE the final indictment , drafted by the prosecutor PERSON , was presented to the applicant .

On an unspecified date the case was transmitted to ORG for adjudication .

During the preliminary investigation the applicant asked the prosecutor in charge of investigation for permission to correspond with his relatives ; these requests , using a standard form , were refused as being contrary to the interests of investigation .

On DATE the applicant asked the prosecutor for permission to meet his partner . His request was refused on DATE .

On DATE the applicant asked the prosecutor for permission to exchange correspondence with his parents , who were living in GPE .

On DATE the prosecutor informed the applicant that he was not allowed to meet his partner or to exchange correspondence with his parents .

On DATE the applicant asked the prosecutor for permission to exchange correspondence with his relatives and to meet his partner and their child . These requests were refused on DATE .

On DATE the applicant asked the prosecutor for permission to exchange correspondence with his mother and his partner .

On DATE the prosecutor allowed the applicant to exchange correspondence with his mother .

On DATE a judge of ORG allowed the applicant to exchange correspondence with his partner .

The applicant spent the whole period of detention from DATE to DATE in a remand prison . According to the Instruction on the Procedure of Keeping Suspected , Accused , ORG ( hereinafter referred to as “ the ORG ” ) , approved by the Minister of the ORG , and Transitional Provisions on the Procedure of Keeping Suspected , Accused , ORG ( hereinafter referred to as “ the Transitional Provisions ” ) , approved by the Minister of ORG , long - term family visits were prohibited in remand prisons .

On DATE ORG received the case file .

On DATE a judge of ORG committed the applicant for trial and scheduled the hearing for CARDINAL DATE . The applicant was not summoned . The judge decided to continue his detention on remand without giving reasons . The decision was not subject to appeal .

On DATE the applicant asked ORG to schedule a separate court hearing in order to determine the date of trial and to reconsider the preventive measure imposed on him .

On DATE a judge of ORG replied that the trial date had not been set .

On unspecified dates the applicant complained to the President of ORG and ORG that his right to trial within a reasonable time had been infringed . On DATE ORG notified the applicant that the trial date had not been scheduled .

On DATE the applicant asked ORG to hold a hearing in his case within a reasonable time . On DATE the applicant repeated this request .

On DATE the applicant announced a hunger strike to protest against the lack of progress in the proceedings .

On DATE ORG informed him that the hearing had been scheduled for DATE and he discontinued the hunger strike .

On DATE ORG informed the applicant that the trial had been scheduled for CARDINAL DATE .

On DATE , in reply to the applicant 's earlier complaint , ORG informed him that the hearing had been set for CARDINAL DATE .

On DATE ORG confirmed that the trial date had been scheduled for CARDINAL DATE .

On DATE ORG confirmed that the trial dates were set for CARDINAL DATE and not DATE as erroneously stated by ORG in its letter of DATE . The applicant was also informed that , due to the court 's case load , it was not possible to begin the trial within the time limit provided for in LAW .

On DATE , on the applicant 's request of DATE to alter his detention on remand , a judge of ORG informed him that he had been committed for trial and that there was no reason to alter the preventive measure imposed on him .

On DATE the Riga Regional court commenced adjudication of the applicant 's case .

On CARDINAL and DATE the ORG court adjourned the hearing as several witnesses did not appear . The court ordered the police to ensure the appearance of these witnesses under constraint .

On DATE ORG found the applicant guilty of robbery and unlawful ammunition storage . The prosecuting authorities were represented by the prosecutor PERSON and his colleague . The court sentenced him to DATE and DATE imprisonment and , according to LAW , ordered his deportation from GPE after having served the sentence . The applicant appealed this judgment .

On DATE ORG acquitted the applicant of the charge of unlawful ammunition storage and quashed the first instance court 's sentence in regard to his deportation , upholding the remainder of the first instance court 's judgment . The prosecutor PERSON represented the prosecuting authorities together with his colleague . The applicant did not file an appeal on points of law and thus the judgment became final .

On DATE the Citizenship and Migration Authority ( hereinafter referred to as the “ CMA ” ) took a decision on forced expulsion of the applicant , stating that the applicant , a NORP national , arrived in GPE on DATE on the basis of a visa . It observed that ORG convicted the applicant on DATE and ordered his expulsion from GPE , according to LAW . The ORG noted that the applicant would be released on DATE and decided , in accordance with LAW of LAW , to expel him from the territory of GPE to GPE . There was no date indicated in the decision as to when the expulsion should take place . When the applicant took cognisance of this decision , he wrote next to his signature that he objected to his expulsion as he had a family in GPE .

On DATE the applicant was released from prison , the time he had spent in detention on remand counting as part of the sentence . On the same date he was transferred to ORG and thereafter detained at the PERSON pending his deportation to GPE .

DATE . On DATE the applicant appealed against the decision of the ORG to ORG of GPE . The court received the appeal on DATE .

On DATE the applicant was deported to GPE .

On DATE a judge of ORG of GPE examined the applicant 's appeal of CARDINAL DATE and , as it was written in NORP , allowed the applicant until DATE to rectify this procedural deficiency .

On DATE the proceedings were terminated as neither the applicant nor his lawyer pursued the complaint .

On DATE the applicant and his partner married in GPE in GPE .

The relevant part of LAW provides that the maximum term of detention on remand during the investigation of a criminal case may not exceed DATE . If it is not possible to complete investigation of the case within that period and there are no grounds for altering a preventive measure , a judge may extend the period of detention for DATE . If necessary , the detained person and his defence counsel may be heard . Extension of detention beyond DATE and DATE is not allowed and the detained person is entitled to immediate release .

Paragraph CARDINAL of LAW ( adopted on DATE and with entry into force on DATE ) provides that in exceptional cases the ORG of ORG may extend detention beyond DATE and DATE .

Paragraph CARDINAL of Article CARDINAL provides that the time taken for all defendants to take cognisance of the documents in the investigation file shall not be taken into account in calculating the length of detention pending trial .

By virtue of LAW , a preventive measure shall be terminated if it has been applied unlawfully or it ceases to be necessary , or may be changed to ateration of detention on remand applied by a judge or a court during the preliminary investigation shall be effected by a reasoned decision of a prosecutor , or it may be terminated by a court decision in the cases provided for in LAW .

According to Article CARDINAL , a complaint regarding acts of a prosecutor shall be subject to appeal to a higher prosecutor . The complaint shall be examined within DATE upon its receipt and it can be dismissed only by a reasoned decision .

Pursuant to Article CARDINAL , all decisions given by a judge at the pre - trial stage regarding the detention on remand and its extension can be appealed to a higher court by a suspected or accused person or his / her counsel or representative . The appellant and the prosecutor in charge of investigation shall be present at the adjudication of the appeal . The appeal shall be examined and a decision taken within DATE as of its receipt . The decision is final and not subject to further appeal .

After a judge has committed an accused person to trial , a court shall decide in a preliminary hearing on the question of preventive measures . A decision concerning committal of an accused person to trial shall be taken within DATE upon receipt of a case file in the court ( LAW ) .

In deciding whether to commit an accused person for trial , a judge or a court shall determine whether the preventive measure applied was appropriate ( Article CARDINAL ) .

When committing an accused person to trial , a judge holds a preliminary hearing to rule on the request to alter a preventive measure if the judge considers that the request is well - grounded . The decision refusing the request to alter a preventative measure can not be appealed . ( Article CARDINAL ) .

Articles CARDINAL and CARDINAL provide that the decisions of a court , ordering detention on remand or altering it , taken during the preliminary hearing or during the adjudication of the matter , may be appealed to a higher court .

Article CARDINAL sets time - limits for examination of a case and provides that the examination of a case before a court must start not later than within DATE or , under exceptional circumstances , no later than within DATE , after the case is received by the court .

A judgment of the first instance court enters into force and becomes final after expiry of the time - limit provided for appeal of this judgment , if the judgment has not been appealed . A judgment of an appellate court enters into force and becomes final after expiry of the time - limit provided for cassation appeal of this judgment , if the judgment has not been appealed . If a cassation appeal has been submitted , the judgment becomes final after its examination by the cassation court , if the court does not quash the judgment ( Article CARDINAL ) .

Criminal Code ( Latvijas Kriminālkodekss ) , applicable at the material time ( in force until DATE )

The relevant part of Article CARDINAL provided that a court can decide to order expulsion from GPE of a person , who is not a national of GPE . The expulsion is a supplementary punishment and is effected after serving the sentence .

Until CARDINAL DATE the situation of persons detained in remand prisons was governed by the “ Instruction on the Procedure of Keeping Suspected , Accused , ORG ” ( GPE par aizdomās turamo , apsūdzēto , apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos ) , approved by the Minister of the Interior on DATE ( hereinafter referred to as “ the Instruction ” ) .

DATE . Rule CARDINAL of the Instruction provided that the sentenced persons and the arrested persons placed in the investigation prisons were allowed to send letters and to receive short - term visits upon approval by the authority conducting the criminal proceedings ( i.e. either by investigating authorities or the court , depending on the stage reached in the proceedings ) .

Rule CARDINAL of the Instruction stipulated that the arrested persons placed in the investigation prisons might be allowed to receive CARDINAL short - term visit ( up to one hour ) per month from family members and other persons only on the basis of a written permission from the person or the body dealing with the particular criminal case .

Rule CARDINAL of the Instruction provided that visits in the investigation prisons took place in the presence of a prison authority .

In DATE the penitentiary institutions were transferred from the supervision of ORG to ORG . On DATE the Minister of ORG approved new “ Transitional Provisions on the Procedure of Keeping Suspected , Accused , ORG ” ( GPE noteikumi par aizdomās turamo , apsūdzēto , apcietināto un notiesāto turēšanas kārtību izmeklēšanas cietumos ) which entered into force on DATE ( hereinafter referred to as “ the Transitional Provisions ” ) .

Rule CARDINAL of the Transitional Provisions provides that the sentenced persons and the arrested persons may be allowed to receive CARDINAL short - term visit per month on the basis of a written permission from the authority dealing with the particular criminal case .

Civil Procedure Code ( ORG kodekss ) , applicable at the material time ( in force until DATE )

Article CARDINAL § CARDINAL provides that decisions of the state authorities , which affect the rights and obligations of individuals , are subject to judicial review by the court which is fully authorised to quash the impugned decisions and terminate the administrative proceedings against the concerned individuals .

According to LAW , the absence of an individual , who has submitted a complaint , at court proceedings is not an obstacle for the court to hear the merits of the case ; however , the court may declare the individual 's presence mandatory .

The court , having found the appealed act or decision unlawful and infringing the rights of an individual , declares the complaint lawful and obliges the responsible authority to remedy the violation complained about ( Article CARDINAL ) .

Law on Entry and Residence in GPE ( NORP par ārvalstnieku un bezvalstnieku ieceļošanu un uzturēšanos GPE ) , applicable at the material time ( in force until DATE )

DATE . The Head of the department or the Head of a territorial unit shall issue an expulsion order , demanding the departure of a person from the territory of the ORG if , inter alia , an alien resides in the ORG without a valid visa or residence permit or if the alien has otherwise violated the visa regime ( LAW ) .

A person is obliged to leave the territory of the state within DATE from the moment he / she has been notified of an expulsion order unless the order has been appealed . The person who has been notified of an expulsion order may appeal it within DATE to the Head of the department . The person may reside in the territory of the state during the examination of the appeal . The decision of the Head of the department may be appealed within DATE from its receipt , by submitting an appeal to a relevant court ( Article CARDINAL ) .

The Head of the department of a territorial unit can decide on the forced expulsion of a person if this person within DATE of the notification about the expulsion order has not appealed it , as provided for by LAW , or his / her appeal has been dismissed ( Article CARDINAL ) .

Other relevant regulations

Article CARDINAL § CARDINAL of the Law on Public Prosecutor 's Office ( Prokuratūras likums ) states that ORG is an institution of judicial power , which independently carries out supervision of the observance of law within the scope of its competence .

The relevant part of LAW ) states that every person has the right to defend his or her rights and lawful interests in a fair trial . In case of unlawful interference with his or her rights , everyone is entitled to adequate compensation .

The judgments of ORG tiesa )

The judgment of DATE in case no . DATE , in the relevant part , reads as follows :

“ ... ORG established :

... the court verdict of not guilty is determined as the legal basis for receiving the compensation . The criterion of the addressees of LAW is non - existence of person 's guilt . Thus , it refers only to those persons , whose liberty has been limited because of an arrest , but who are not guilty of a criminal case and the fact has been acknowledged by a court judgment ... . ”

“ ... ORG established :

The Transitional Provisions [ on the Procedure of Keeping Suspected , Accused , ORG ; confirmed by the Minister of ORG on DATE ] have been passed in compliance with LAW on the Structure of ORG , determining that individual ministers may issue instructions binding on the institutions subordinate to them if the respective issue has not been regulated by the PERSON on the Structure of the Cabinet of Ministers . Instruction No . CARDINAL - CARDINAL/CARDINAL envisages that the personnel of ORG and the institutions subordinated to it shall be acquainted with LAW . ... LAW ... have [ not ] been published for common knowledge .

Thus LAW ... are internal normative acts ... . ”


The applicant , Mr PERSON , is a NORP national who lives in GPE ( GPE ) . He was represented before the ORG by PERSON , a lawyer practising in GPE .

The applicant is a member of the political party “ the NORP ” ( ORG PERSON , in the following PERSON ) . The party is considered as populist and right - wing and has therefore been under scrutiny by the offices for the protection of the constitution ( PERSON ) in various GPE ( Länder ) . In the general elections in DATE , PERSON achieved PERCENT of the votes . The party has not been declared unconstitutional by ORG in accordance with LAW ( CARDINAL ) of the LAW . The applicant stood for the party as a candidate in local elections in DATE and as a substitute candidate in regional elections in the State ( Land ) GPE in DATE . Moreover , he contributed to activities of the party ’s county association on a regular basis .

The applicant had been employed as a civil servant with the ORG police since DATE . He was promoted several times , lastly in DATE to the position of detective superintendent ( PERSON ) . He retired in DATE .

Although the applicant received above - average appraisals at work , he was not considered for a further promotion to chief inspector ( GPE ) despite the fact that there were such openings as from DATE . Following his inquiry about the reasons for not having been promoted , ORG informed the applicant in a letter dated DATE that promotions were generally based on suitability , capabilities and professional qualifications . Regarding his suitability , ORG expressed severe doubts due to his active membership of ORG , a party which was suspected to pursue anti - constitutional goals . Therefore , his promotion process had been stayed until further instructions by GPE of the interior would be received regarding the matter .

The applicant subsequently instituted proceedings against the lack of promotion to the position of chief inspector . On DATE , ORG dismissed the applicant ’s claim , finding that the decision not to promote the applicant had been lawful . The court noted that public servants were generally not entitled to a promotion which was subject to the employer ’s discretion with regard to suitability , capabilities and professional qualifications . The employer enjoyed a margin of appreciation in this respect . That margin had not been overstepped by basing unsuitability for promotion of a public servant on active membership in a political party seeking to undermine the free democratic constitutional system . Having regard to a judgment by GPE of DATE , the court considered Die ORG as a party with unconstitutional goals . Both before and during the proceedings , the applicant had failed to dissociate himself from right - wing fundamentalist utterances of party officials . Moreover , the fact that only ORG could declare a prohibition of a political party with unconstitutional goals ( and had not yet done so with regard to PERSON ) was no obstacle . Whereas the NORP constitution granted every citizen the right to work the free democratic constitutional system as a member of a party which is not prohibited , the duty of loyalty required from public servants ( which is laid down in LAW ( CARDINAL ) of LAW ) would demand that every public servant defend this order . Lastly , the court found that the judgment of ORG in the case of GPE v. GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL ) would not require a different ruling . That case concerned the dismissal of a public servant as opposed to non - promotion in the present case . Hence the question of proportionality had to be considered differently .

On DATE , GPE dismissed the applicant ’s appeal and refused to grant leave to appeal on points of law . The court found that the applicant ’s employer had not overstepped his margin of appreciation as the suitability of public servants could lawfully be assessed with regard to their duty of loyalty . Membership in a party which pursued goals which were not in accordance with the free democratic constitutional system was sufficient to cast doubt on whether a public servant was a suitable candidate for promotion . Since the party in question had been scrutinised by various offices for the protection of the constitution in GPE , and this scrutiny had been found lawful by numerous ORG in GPE , the court did not itself have to establish whether or not the activities of PERSON were unconstitutional . With regard to the proportionality of the decision not to promote the applicant , the court found that the judgment in the case of GPE v. GPE ( above - mentioned ) did not demand a different ruling since the applicant in the present case had already been promoted several times and had not been deprived of his professional and economic basis by the decision not to promote him further .

The applicant ’s appeal against the refusal to grant leave to appeal on points of law was dismissed by ORG on DATE .

On DATE , ORG refused to admit the applicant ’s constitutional complaint . It held that the administrative courts’ assessment concerning the unconstitutional goals of ORG was in line with the jurisprudence of various ORG in different GPE ( Länder ) . The courts had rightly granted the employer a margin of appreciation when assessing the applicant ’s suitability for promotion . ORG found that the domestic authorities and courts had lawfully taken into account the applicant ’s political activities even though it had not yet itself declared PERSON an unconstitutional party in accordance with LAW ( CARDINAL ) of the LAW .

The relevant provisions of LAW are worded as follows :

Section CARDINAL

“ CARDINAL . Parties which , through their aims or the conduct of their members , seek to damage or to overthrow the free democratic constitutional system or to endanger the existence of GPE shall be held to be anticonstitutional . ORG shall determine the question of anti - constitutionality . ”

Section CARDINAL

“ CARDINAL . All NORP shall have an equal right of admission to the civil service according to their suitability , capabilities and professional qualifications .

The exercise of sovereign authority on a regular basis shall , as a rule , be entrusted to members of the public service who stand in a relationship of service and loyalty defined by public law . ”

The relevant provision of GPE is worded as follows :

Section CARDINAL ( CARDINAL )

“ Nominations shall be carried out on the basis of suitability , capabilities and professional qualifications regardless of sex , race , religious or political beliefs , origin or relationships . ”


Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE the second applicant was arrested and taken into police custody on suspicion of membership of an illegal armed organisation , namely the ORG ( Workers’ ORG ) . The first applicant was arrested and detained , on DATE , on the same grounds .

On DATE the applicants and CARDINAL other suspects were identified as those responsible by PERSON and PERSON , eyewitnesses to the killing of their father , Mr M.S.T. , by the ORG .

On DATE the applicants were interrogated by CARDINAL police officers , in the absence of a lawyer , and they both gave detailed statements regarding their participation in , inter alia , the killing of Mr M.S.T and kidnapping of ORG , on DATE , on behalf of the ORG .

On DATE the applicants , in the absence of a lawyer , were first asked to identify from photos a deceased suspect and later confronted with other suspects . During this procedure both applicants gave details about the other detainees , such as their code names and acts undertaken by them .

On DATE , at TIME , the applicants were examined by a doctor who noted that the first applicant had a bruise of QUANTITY on his lower lip and that the second applicant had CARDINAL scratches of QUANTITY on his lower right knee and pain in his back and lower back .

In their application form the applicants submitted that they had been subjected to ill - treatment while in police custody . In this connection , they claimed that they had received electric shocks , falaka ( beating of the soles of the feet ) and NORP hanging .

In a letter to the ORG dated DATE the first applicant submitted , inter alia , that during his arrest he and his family had been sworn at and threatened and that when they had arrived at the police station he had been blindfolded . Subsequently , he had been interrogated by CARDINAL or QUANTITY police officers who had kicked and punched him and hit him with sticks . CARDINAL of them had hit him in the stomach and another had stood on his head . When he had denied the accusations , they had subjected him to hanging and to electric shocks on his penis and feet . Later , when he had refused to sign a statement written by the police , QUANTITY police officers had punched him in the face and squeezed his penis . Because of the pain he had signed the statement . The applicant further stated that the doctor who had examined him had seen the swelling on his lips and penis and had decided to transfer him to hospital but that the relevant paper had been ripped up by the police .

On DATE the applicants were brought before the public prosecutor at ORG where they refused to give any statements .

DATE the applicants were brought before a judge at ORG where they refuted the contents of their statements to the police . The second applicant claimed that some of these submissions had been written by the police and that he had made others under duress . The first applicant submitted that the police had made him sign the statement without reading it . The judge remanded them in custody .

On DATE the public prosecutor at ORG indicted the applicants LAW for engaging in activities for the purpose of bringing about the secession of part of the national territory . In particular , they were accused of participating in the killing of Mr M.S.T and kidnapping of ORG on CARDINAL DATE .

DATE and DATE the court held hearings on a regular basis during which it examined the accused and a number of witnesses , including those appearing for the defence . In particular , testimony was taken from the wife and sons of Mr M.S.T. , including Mr ORG All of them claimed that they would not be able to identify the perpetrators , in particular because they had been wearing masks . They further submitted that they knew the applicants because they were from the same village and were relatives but that they had never stated , during the identification procedure , that the applicants were responsible for the killing of Mr M.S.T. The court also took testimony from the police officers who had conducted the identification procedure and who stood by the content of the verbatim reports drawn up in that connection . On DATE one of the judges , acting as rapporteur , examined the video footage of the re - enactment of events and submitted his report to the court . The applicants contested the report . On numerous occasions the applicants’ lawyer requested their release stating , in particular , that , apart from statements obtained under duress and torture , there was no evidence to convict the applicants . At a hearing on DATE the prosecutor submitted his observations on the merits in which he requested the ORG conviction under LAW . The accused were granted time to submit their additional observations .

At a hearing on DATE the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time . At this hearing the court heard the additional defence submissions of CARDINAL of the accused , including the second applicant . The next hearing was held on DATE , when the court heard the submissions of the ORG representative , the second applicant and some of the other accused .

In the meantime , on DATE , the applicants submitted their final written defence submissions in which they claimed that they had been subjected to torture , as shown by their medical reports , and that instead of opening an inquiry , the prosecution and the court had relied on their statements obtained under duress .

On DATE the first applicant wrote a letter to the court proclaiming his innocence . He reiterated that the police had made him sign some documents under torture .

On DATE the court held a hearing . On DATE it decided to convict the applicants under , inter alia , LAW and sentenced them to DATE and QUANTITY months’ imprisonment . In its decision , the court held that the applicants , in their police statements , had acknowledged their relationship to and activities within the organisation and that although they had later retracted those statements , the court , having regard to the evidence in the case file , did not find their later submissions credible .

In the meantime , on DATE , the first applicant wrote to PERSON , the chair of ORG of ORG , complaining about his alleged illtreatment . On DATE the PERSON public prosecutor ’s office decided not to commit any police officer for trial on the ground that the statutory time - limit for prosecution of the offence had expired . On DATE the applicant filed a second petition with ORG of ORG . Once again , on DATE , the prosecutor decided that , despite recent amendments to the relevant provisions , the statutory timelimit in respect of the applicant ’s complaint remained the same .

On DATE the applicants appealed . In their petition they submitted , inter alia , that the first - instance court had based its conviction on their statements in police custody which had been obtained under duress . In this connection , they referred to their medical reports .

On DATE ORG held a hearing and upheld the judgment of the first - instance court in so far as it concerned the applicants’ conviction and sentence .

On DATE the applicants were released from prison .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE and lives in GPE .

The applicant works as a technician for a ORG telephone company . On DATE she called NORP over the phone and they arranged for the applicant to visit NORP at her house situated on GPE . no . CARDINAL in GPE in order to verify the functioning of the phone line installed there . TIME when she came to NORP ’s home , she was met by NORP who , according to the applicant , started shouting at her and calling her names .

The applicant called the police from her mobile phone , but was told that she needed to go to the police station in person in order to make a written complaint . She decided to go back to her workplace and told her superior about the incident , but was advised to forget about it . She was told that NORP had already called her superior to complain about an alleged assault on her by the applicant .

R. complained to the police that the applicant had assaulted her on DATE . According to ORG ’s complaint , the applicant had entered her apartment situated on Viilor str . CARDINAL apartment CARDINAL without authorisation and started ripping the phone lines off the wall and insulting her with offensive language . The applicant had then gone to the cellar and destroyed the phone socket and phone lines . She had been extremely irritated and one could smell alcohol on her breath . Finally , she had hit NORP in the face and left . NORP ’s husband wrote a similar complaint , also noting PERSON str . CARDINAL as being the address of the apartment where the incident had taken place .

On DATE the local police filed a report confirming that the applicant had committed an administrative offence by insulting NORP The report attested that on DATE the applicant had entered NORP ’s apartment without authorisation , insulted her with offensive language and then hit her in the face , causing her physical harm .

On DATE the Soroca ORG found the applicant guilty of the administrative offence of hooliganism .

On an unknown date ORG sent the case for a rehearing .

NORP The applicant submitted statements from CARDINAL companies she had visited on DATE , all confirming that she had been polite and not under the influence of alcohol DATE , which contradicted PERSON ’s statements concerning the applicant ’s aggressiveness and alcohol consumption . She also submitted a certificate confirming that no repair of the phone lines at NORP ’s home or office had been asked for on DATE or thereafter , and evidence that after her alleged visit phone calls had been made from both phone lines . That proved , in the applicant ’s opinion , that the statements in NORP ’s complaint concerning the ripping out of the phone line and phone socket had been untrue . She submitted further evidence proving that her company had a contract to service the phone line installed at NORP ’s place , that she had been asked to verify a number of phone lines on DATE , including that at NORP ’s place , and evidence of the applicant ’s call to the police on DATE .

On DATE the GPE ORG found the applicant guilty of the administrative offence of insult ( injuria ) . The decision was an almost word - for - word copy of that adopted on DATE and reads as follows in its entirety :

“ Decision concerning the administrative offence under LAW , DATE

Judge PERSON of ORG , having examined the case concerning the administrative offence regarding [ the applicant , her address and workplace ] , has found :

On DATE at TIME [ the applicant ] entered [ NORP ’s ] apartment situated on GPE str . CARDINAL , apartment CARDINAL without authorisation and started shouting and calling her names , thus denigrating [ R. ’s ] honour and dignity , therefore committing the administrative offence provided for in LAW .

The allegation that [ the applicant ] hit the victim has not been confirmed .

In view of the above , relying on [ relevant procedural provisions of LAW ] , the court decides :

To impose a fine on [ the applicant ] in the amount of CARDINAL conventional units amounting to CARDINAL [ GPE ] lei .

This decision may be appealed against within DATE to ORG of Appeal ” .

In her appeal in cassation the applicant submitted that there was no evidence whatsoever that she had ever been in NORP ’s apartment at GPE str . or shouted at her . The court had not given any ground for the decision such as a document , witness statement or anything other than the statements by NORP and her husband . Moreover , she had visited NORP at her address at Viilor str . no . CARDINAL and not at GPE str . no . CARDINAL as stated in the decision . Finally , the court had disregarded LAW ( see below ) , according to which no administrative penalty could be imposed after DATE from the date on which the offence had been committed .

On DATE ORG upheld the lower court ’s decision . The court ’s decision started by stating that :

“ By its decision [ of DATE ] the [ lower court ] imposed an administrative penalty on [ the applicant ] because on DATE she insulted [ NORP ] in her apartment situated on GPE str . in GPE , thus denigrating [ R. ’s ] honour and dignity . ”

It then summarised the applicant ’s appeal . The court further found that the lower It correctly dismissed the part of the complaint that the applicant had hit NORP , since during the court hearing NORP herself had denied having been hit . The court reduced the fine to CARDINAL NORP lei ( MONEY ( ORG ) ) , using a slightly different manner of calculating the amount of the fine . That decision was final . Its text was accessible at FAC , where it arrived on DATE .

The relevant provisions of LAW ( “ the ORG ” ) read as follows :

“ Section CARDINAL/CARDINAL . Insult

Insult , that is , the intentional denigration of honour and dignity of a person through an action , verbally or in writing , shall be punished by a fine of CARDINAL conventional units or by administrative detention of DATE .

Section CARDINAL . Circumstances to be clarified during the examination of the case concerning an administrative offence .

The authority ( official ) shall clarify during the examination of the case concerning an administrative offence : whether an administrative offence has been committed ; whether the person is guilty of having committed it ; whether ( s)he should be subjected to administrative responsibility ; whether there are circumstances attenuating or aggravating responsibility ; whether pecuniary damage was caused ; whether there are grounds for forwarding the materials concerning the administrative offence for examination by a public association , the staff [ of his / her employer ] ; as well as other circumstances which are important for the examination of the case . ”


CASE OF MIKULJANAC, MALISIC AND SAFAR v. SERBIA

Violation of Art. 6-1;Violation of Art. 13

The applicants were born in DATE , DATE and DATE , respectively , and live in GPE .

On DATE the applicants were dismissed from their work .

On DATE they instituted civil proceedings in ORG against their former employer , seeking reinstatement and salary arrears .

Sometime after the respondent ORG 's ratification of ORG , the applicants ' case was assigned to another judge .

The next hearing in the case was held on DATE , when the court decided to hear several witnesses .

The hearing scheduled for DATE was adjourned by the judge . Subsequently , the case was yet again assigned to another judge and the next hearing was scheduled for DATE , but did not take place because the witnesses had not been duly summoned .

The next hearing , scheduled for DATE , was adjourned because the summoned witnesses failed to appear .

On DATE the court held a hearing and heard the applicants and a witness . The applicants requested the court to obtain an additional expert opinion concerning the amount of their salary arrears . The court held CARDINAL more hearings DATE on DATE and CARDINAL DATE .

On DATE the court ordered the applicants to advance the costs of the proposed expert opinion and to suggest an expert . The applicants did so on DATE . At the next hearing held on DATE , the court ordered that the expert opinion be obtained . The appointed expert submitted the opinion on DATE .

The court held further hearings on DATE and DATE . The respondent then filed a request for a transfer of jurisdiction , which was dismissed by ORG on DATE .

The court held further hearings on CARDINAL and DATE and on DATE . On the last mentioned date the court gave judgment , accepting the applicants ' claim . The applicants appealed against the decision on costs and the proceedings are currently pending before the second - instance court .

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

Article CARDINAL § CARDINAL provided that all employment - related disputes were to be resolved by the courts within DATE from the date of institution of the proceedings .

This Act entered into force on DATE and thereby repealed LAW of DATE .

The text of LAW of LAW of DATE corresponds to the aforementioned LAW of DATE .

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 ) .

Article CARDINAL of this Code defines “ judicial malfeasance ” ( kršenje zakona od strane sudije ) as a separate criminal offence .

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 covered 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 the aforementioned 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 session .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

In DATE the applicant applied for the advertised post of application developer ( PERSON ) with ORG ( “ S ” ) , a limited liability company developing and trading navigation software . S decided to hire another candidate , inter alia because of the latter ’s proven interest in navigation .

In DATE the applicant , relying on ORG ) , brought an action for damages against the company , claiming that she had been discriminated against on the grounds of her sex , age and possibly also ( NORP ) origin .

On DATE ORG dismissed her action as unfounded . It pointed out that according to ORG a person claiming compensation was required to establish the existence of at least some indications of discrimination . It held that the applicant had failed to set out sufficiently that she had been discriminated against on CARDINAL of the grounds enumerated in LAW . In its reasoning the court dealt with the applicant ’s arguments and set out why there were neither sufficient indications nor any kind of proof of the alleged discrimination .

On DATE ORG confirmed the first - instance decision . It referred to the reasons given by ORG and again set out the main reasons why there was no indication of discrimination under LAW . It refused to grant leave to appeal on points of law . The judgment was served on the applicant ’s lawyer on DATE .

By a letter of CARDINAL DATE the applicant requested ORG to assign her counsel and legal aid . On DATE ORG gave her the file number of her legal aid request . By letters of CARDINAL and DATE the applicant informed ORG that her letter of DATE should also be seen as a complaint against the refusal to be granted leave to appeal on points of law ( Nichtzulassungsbeschwerde ) and supplemented her reasoning . On DATE ORG gave her the file number of her complaint about the refusal to be granted leave to appeal on points of law . By a letter of CARDINAL DATE the applicant added further arguments to her requests . In DATE the applicant sent several further letters to remind ORG of her requests .

On DATE the applicant lodged a constitutional complaint against ORG failure to act in the proceedings concerning her requests of DATE . On DATE ORG refused to admit the constitutional complaint for adjudication , without giving any reasons .

On DATE ORG informed the applicant that with regard to ORG decision of DATE about her constitutional complaint “ against the decision of the senate ” , it “ considered the matter resolved ” ( “ betrachtet der ORG die FAC ” ) .

By a letter of CARDINAL DATE the applicant again asked ORG to decide upon her requests and pointed out that her constitutional complaint was directed against its failure to act and not against a “ decision of the senate ” , as there had never been such decision .

On DATE and DATE the ORG refused to admit for adjudication further constitutional complaints by the applicant against ORG failure to act .

By a letter of DATE the applicant lodged a motion for bias against the judges of ORG involved in her proceedings . ORG on DATE again informed the applicant that her requests of DATE had been resolved and struck off the list , so that there was no point in deciding her motion for bias .

On DATE the ORG refused to admit for adjudication the applicant ’s constitutional complaint against ORG failure to decide on her motion for bias . It held that due to a misinterpretation of ORG decision of DATE ORG had considered the matter resolved and failed to take a decision in the proceedings . The right to effective legal protection required court proceedings to be terminated within a reasonable time . In this regard it also pointed to LAW . ORG concluded that with regard to its clarification , it could be expected that ORG would neither continue to refuse to take a decision in the applicant ’s proceedings ( concerning her requests of DATE and the motion for bias of DATE ) nor would it fail to take such decisions within reasonable time .

On CARDINAL DATE ORG rejected the applicant ’s legal aid request for her complaint against the refusal to be granted leave to appeal , holding that the complaint lacked reasonable prospects of success . On DATE ORG declared inadmissible the applicant ’s complaint against the refusal to be granted leave to appeal because she was not represented by counsel , as statutorily required .

In DATE the applicants lodged a criminal complaint ( PERSON ) against ORG judges involved in her proceedings . On DATE ORG refused to institute preliminary investigations . It held that the applicant ’s allegations were unsubstantiated . There were no indications of a criminal offence in the applicant ’s submissions .

The applicant appealed against this decision with ORG .

According to section QUANTITY CARDINAL and CARDINAL of FAC ( Arbeitsgerichtsgesetz ) ORG refusal to grant leave to appeal on points of law can be challenged by a complaint ( Nichtzulassungsbeschwerde ) to ORG . According to section CARDINAL of FAC a party has the opportunity to request legal aid and the assignment of counsel .

Pursuant to section QUANTITY the parties in proceedings with ORG and ORG have to be represented by counsel .


Preliminary objections joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 13+6-1;Violation of Art. 6-1;Violation of Art. 13+P1-1;Violation of P1-1;Pecuniary and non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in the town of PERSON in GPE .

The NORP authorities initiated criminal proceedings against the applicant :

- on DATE under LAW ( tax evasion by a private person ) ; the applicant was charged on DATE ;

- on DATE under LAW ( abuse of power ) ;

- on DATE under LAW ( tax evasion by a legal entity ) ;

- on DATE under LAW ( b ) ( misappropriation of private property ) ;

- on DATE under Article CARDINAL ( causing pecuniary damage ) .

The above cases were joined on a number of occasions , most recently on DATE . According to the ORG , the charges under ORG CARDINAL and CARDINAL of the Code were abandoned on CARDINAL DATE and DATE respectively ( see , however , paragraph CARDINAL below ) .

According to the ORG , the proceedings were suspended on DATE , CARDINAL DATE and CARDINAL DATE , DATE and DATE , and DATE , owing to the applicant ’s illness . According to the Government , the applicant and his counsel were advised that the proceedings had been suspended on a number of occasions and subsequently resumed .

On DATE the applicant sought access to the case file and , in particular , to the above - mentioned decisions to suspend the proceedings . On DATE the Prosecutor ’s Office of GPE sent him a letter stating that the case file might be available at the archives of ORG in PERSON . On DATE ORG of ORG of the ORG informed the applicant that the criminal case against him had been suspended owing to his illness . Upon his renewed request , on DATE the applicant received another reply from ORG of ORG stating that ORG might be able to provide the requested documents . On DATE ORG informed the applicant that on DATE the criminal case against him had been forwarded to ORG of GPE .

On DATE ORG discontinued the proceedings as regards charges under ORG CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL of LAW .

In DATE the applicant bought a PAZ-CARDINAL bus . On DATE the investigator in the criminal case against the applicant ( see above ) authorised seizure of the bus as security for eventual civil claims against him or eventual confiscation as a penalty under LAW ( b ) of LAW ( see paragraph CARDINAL below ) . On DATE the applicant ’s bus was seized . It appears that no civil claims were lodged in the criminal case against the applicant .

On an unspecified date the bus was transferred for safekeeping to a Mr Y.

NORP In DATE the applicant brought proceedings in which he challenged the investigator ’s seizure order as unlawful and requested the court to release the bus .

On DATE the ORG of PERSON examined the applicant ’s claims with reference to LAW ( see paragraph CARDINAL below ) and rejected them as unfounded . The court held as follows :

“ ... under LAW § CARDINAL of LAW in order to secure civil claims or eventual confiscation of property the investigator shall issue an order of attachment in respect of the accused ’s property which had been unlawfully obtained . LAW CARDINAL of LAW of the Russian Federation provides for confiscation as a penalty . Besides , the case discloses pecuniary loss [ sustained by the victim ] , and the victim has the right to file a civil claim for damages against the applicant ...

The court finds no reasons for leaving the bus with [ the applicant ] for safekeeping ...

The [ first instance ] court rejected the applicant ’s arguments to the effect that his property rights over the bus had been breached by the continuing attachment of property and the criminal case is still pending . The case is being suspended owing to the applicant ’s illness ... ”

On DATE ORG upheld the judgment on appeal . The court stated :

“ Under LAW § CARDINAL LAW , which is now applicable to issues pertaining to attachment of property , the authority dealing with the criminal case has the power to release the property under the order of attachment , if attachment is no longer needed . As shown by the case file , at present the criminal case against the applicant is being dealt with by the investigating authority , the investigation being suspended . Taking into account the earlier submissions and the requirement of the procedure under LAW , the court is not empowered to decide on the issue of lifting the order of attachment ... ”

On DATE the deputy prosecutor of GPE lifted the order of attachment in respect of the applicant ’s bus . The applicant was served with a copy of that decision on DATE . It appears that the authorities were unable to determine where the bus was kept and thus could not return it to the applicant .

Under LAW ( b ) of the LAW , in force at the material time , misappropriation of another ’s property committed on a large scale or in view of the person ’s hierarchical status was punishable by a sentence of imprisonment of DATE with or without confiscation of property . Under LAW of DATE ( no . CARDINAL ) , confiscation as a penalty was removed from LAW , including its LAW ( b ) . On DATE a new LAW reintroducing the notion of confiscation was inserted into the LAW in relation to a number of offences . The offences under ORG CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL were not concerned .

A preliminary investigation in a criminal case had to be completed within DATE starting from the date when the proceedings were initiated until DATE when a bill of indictment was sent to the prosecutor or when the proceedings were terminated or suspended ( Article CARDINAL ) . The preliminary investigation could be suspended if the accused had absconded or if his whereabouts had not been determined or if he was suffering from a mental or other serious disease . The investigator had to issue a reasoned decision ( Article CARDINAL ) . Pursuant to LAW , a prosecutor was competent to examine complaints against decisions taken by an inquirer or an investigator . By a ruling of DATE , ORG invalidated this provision in so far as it excluded a possibility of judicial supervision over such decisions , including those relating to suspension of proceedings and imposition of charging orders .

Under LAW of the LAW , the preliminary investigation can be suspended , inter alia , if the suspect or accused is temporarily suffering from a serious disease which prevents him from participating in the investigation . A victim , civil claimant or respondent and their representatives should be notified accordingly and apprised of their right to appeal against the decision suspending the proceedings ( LAW ) . A suspect or accused and counsel should also be informed , if the suspension was caused by his or her illness .

Articles CARDINAL and CARDINAL of the Code concern judicial supervision over any ( in)action on the part of an inquirer , investigator or prosecutor in so far as such ( in)action affects a complainant ’s rights or impedes his or her access to a court . The judge either ( i ) invalidates the impugned ( in)action as unlawful or lacking justification and requires the respondent authority to remedy the violation , or ( ii ) rejects the complaint .

A decision terminating the criminal proceedings should be handed over or dispatched to the person concerned ( LAW ) .

Article CARDINAL § CARDINAL of the LAW safeguards a so - called “ right to rehabilitation ” , including a right to full compensation in respect of pecuniary and non - pecuniary damage caused by criminal prosecution of a person who has been acquitted or in respect of whom the criminal proceedings have been terminated , inter alia , owing to a lack of corpus delicti or because the person had not been involved in the criminal act . The investigator issues a decision in which he or she recognises the person ’s right to rehabilitation and also sends notification explaining the procedure for obtaining compensation ( LAW ) .

A person who has sustained pecuniary damage or loss from a criminal offence has a right to lodge a civil claim against the accused . He or she can exercise this right from the commencement of the criminal proceedings until the opening of the trial ( LAW ) .

If sufficient reasons obtain as to the existence of pecuniary damage caused by a criminal offence , the investigating authority or a court should take measures for securing the existing or eventual civil claim and/or for impeding the accused from hiding his property , if the charges against him carry confiscation as a possible penalty ( LAW ) .

According to LAW , in order to secure civil claims or eventual confiscation of property , the investigator should issue a charging order in respect of an accused ’s property ; that of persons who are liable by law for the accused or suspect ’s actions ; that of other persons who are in possession of the property acquired through unlawful actions . Property attached may be impounded or transferred at the attaching official ’s discretion for safekeeping to a competent authority or left with the owner or other person who shall be warned about responsibility for keeping the property safe , and the fact shall be mentioned in the relevant record . The investigator lifts the charging order if it is no longer needed .

Under LAW , in order to ensure execution of a judgment in a part pertaining to a civil claim , to satisfy other pecuniary penalties or an eventual confiscation of property , an inquirer or investigator , subject to the prosecutor ’s consent , or a prosecutor should apply to a court for a charging order in respect of the suspect ’s or accused ’s property . The court should examine such request under the procedure set out in LAW . A charge or attachment of property prohibits the proprietor or owner from disposing of , and , if appropriate , using the property ; it may require impounding of that property and its transfer for safekeeping to its proprietor or owner or a third person ( § § CARDINAL and CARDINAL ) . A charging order is lifted by the authority dealing with the criminal case when the charge is no longer needed ( § CARDINAL ) .

On DATE Article CARDINAL § CARDINAL of the Code was amended to exclude an eventual confiscation of property as a reason for requesting a charging order . A charging order could only concern property acquired by the suspect , accused or another person as a result of criminal activity or by criminal means .

On DATE Article CARDINAL § CARDINAL of the Code was amended to reintroduce an eventual confiscation of property as a reason for requesting a charging order ; in such circumstances it became incumbent on the court to indicate the relevant circumstances in its decision .

By decision no . CARDINAL of DATE ORG held , in the context of proceedings concerning LAW ORG on real evidence , that provisional measures such as imposition of a charge on one ’s property may be required in criminal proceedings and should not be considered as a violation of constitutional rights and freedoms , including property rights . ORG scrutiny of such measures as to their lawfulness should also encompass an assessment of whether other measures would be inappropriate , with due regard to the gravity of the charges in relation to which provisional measures have been taken , as well as to the nature of the property under the charge , its importance for its owner or holder and other eventual negative effects that the charge might have . Thus , it is incumbent on the investigator and , subsequently , on the reviewing court to be satisfied that the property under the charge should or should not be returned to its owner for safekeeping until the closure of the criminal proceedings .


The applicant , a stateless person , was born in GPE in DATE . Before the ORG he is represented by Mr PERSON , a lawyer practising in GPE .

The applicant moved to GPE from GPE in DATE . Since DATE , he is married to a NORP national , GPE He also has a DATE daughter who lives in GPE .

As from DATE the applicant has been convicted on many occasions for serious and repeated crimes , inter alia crimes against property , including robbery , as well as smuggling of goods and narcotics offences of an aggravated nature . He has been sentenced to the following terms of imprisonment : DATE , DATE , DATE , DATE CARDINAL years , DATE . He was released on probation on DATE . At that time , DATE and DATE of his sentences had not been served .

The applicant ’s expulsion from GPE was ordered in DATE and DATE . However , by a Government decision of DATE , the expulsion orders were revoked by pardon as the applicant risked political persecution in GPE . Having regard to that decision , ORG ( tingsrätten ) of ORG , in its DATE judgment , refrained from ordering the applicant ’s expulsion .

In DATE the applicant was charged with having possessed and stored , with the intention to sell , QUANTITY of amphetamine in DATE . However , on DATE , ORG acquitted the applicant .

By a judgment of DATE ORG of GPE convicted the applicant for CARDINAL narcotics offences , CARDINAL of which was considered as aggravated , illegal possession of a weapon and falsification of a passport . All the crimes had been committed in DATE . The more serious narcotics offence involved the possession and storage , with the intention to sell , QUANTITY of amphetamine . The applicant was sentenced to DATE in prison . Further , the court ordered his expulsion from GPE and issued a prohibition on his return . When fixing the applicant ’s prison sentence , the court had regard to the detriment suffered by him on account of the expulsion .

The public prosecutor appealed against ORG judgment and the applicant appealed against the ORG judgment .

ORG ( PERSON hovrätt ) joined the CARDINAL cases and gave judgment on DATE . Reversing the judgment of ORG , it found the applicant guilty of the narcotics offence committed in DATE . It upheld the judgment of ORG of GPE in regard to the finding of guilt , the expulsion order and the prohibition on return . Having regard to the expulsion order , it sentenced the applicant to a total of CARDINAL years’ imprisonment .

On DATE ORG ( ORG domstolen ) refused the applicant leave to appeal .

In DATE , at his own request , the applicant lost his NORP citizenship .

According to a medical certificate issued on DATE by ORG , a licensed psychologist at FAC , the applicant had mental problems due to the expulsion order and had expressed the intention not to commit any crimes in the future . S.A. expressed that , with increased age , criminal activities tend to decrease .

On several occasions thereafter the applicant requested the Government to exercise its power under LAW , LAW of LAW to annul the expulsion order . All his requests were denied . The last decision was taken by the Government on DATE .

The applicant was released on probation on DATE and was expelled from GPE on DATE . His wife left GPE and joined him soon thereafter .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by PERSON , ORG at ORG .

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

On DATE the applicant initiated proceedings before ORG of GPE against his former employer , a private company , for reinstatement and payment of salary for the period of unemployment .

By judgment of DATE ORG reinstated the applicant and ordered that the employer should pay him arrears . By final judgment of DATE GPE increased the amount of arrears to be paid to the applicant and upheld the remainder of the judgment .

On DATE the Presidium of ORG , by way of supervisory review , quashed the judgments of DATE and DATE in the part concerning payment of arrears . This issue was accordingly to be examined anew .

ORG received the case - file in DATE and fixed the first hearing for DATE during which the applicant amended his claims . The following hearing , listed for DATE , was adjourned because the parties defaulted and the following hearing was thus scheduled for DATE , taking into consideration the DATE vacation period . In DATE the applicant again amended his claims , now also seeking compensation for non - pecuniary damage .

On DATE ORG , upon the applicant ’s request , adjourned the proceedings and ordered an expert opinion . The proceedings were resumed in DATE .

CARDINAL hearings were fixed DATE and DATE . Of those CARDINAL hearing was adjourned because the respondent defaulted and CARDINAL hearings were adjourned in order to obtain additional evidence and an expert opinion . During hearings in DATE the applicant amended his claims .

By judgment of DATE ORG dismissed the applicant ’s claims . The judgment was quashed on appeal on DATE and the case concerning the payment of arrears and non - pecuniary damage returned to ORG for re - examination . The first hearing was fixed for DATE .

The following CARDINAL hearings listed DATE and DATE were adjourned , CARDINAL of them due to the respondent ’s absence and CARDINAL because the applicant was ill .

On DATE another presiding judge was assigned to the case . The following hearing , listed for DATE , was adjourned because the new judge participated in other unrelated proceedings .

In DATE ORG , upon the applicant ’s request , stayed the proceedings and ordered an additional expert opinion . On DATE the expert notified the court that the opinion had not been prepared because the fees for preparing such an opinion had not been paid . ORG informed the applicant that he should bear the expenses of the expert work . In DATE the expert returned the case - file to the court as the applicant had not paid the fees .

In DATE the applicant successfully asked ORG to resume the proceedings . A hearing was fixed for DATE .

By judgment of DATE ORG dismissed the applicant ’s claims once again . On DATE GPE quashed that judgment in the part concerning the compensation for non - pecuniary damage , remitted this matter for a fresh examination and upheld the remainder of the judgment .

In DATE the case - file was returned to ORG and a new presiding judge was assigned to the case . A hearing was fixed for DATE , however , it was adjourned due to the respondent ’s absence . The hearing was thereafter scheduled for DATE .

By judgment of DATE ORG of GPE awarded the applicant MONEY as compensation for non - pecuniary damage . That judgment was upheld on appeal on DATE .


Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi

The applicant was born in DATE . He is currently serving his sentence in PERSON near GPE in GPE .

On DATE a couple were killed .

On DATE at TIME the applicant was arrested at his home in PERSON . He was taken to Smederevo police station and beaten up by police officers . He then confessed to having participated in the killing .

On DATE the applicant was taken to FAC .

On DATE the applicant was taken to the investigating judge . He met his counsel there , who had meanwhile been appointed by the applicant ’s wife , but he was not given the opportunity to talk with him in private . While the applicant confirmed his earlier confession , he complained to the judge that he had been beaten up by the police . The applicant was then examined at ORG . According to the medical report , he had a broken rib and bruises on his chest .

On DATE the applicant was taken to the investigating judge again . His counsel was not present . The applicant met his counsel in private for the first time DATE .

On DATE the applicant was returned to NORP police station and beaten up again . After having collapsed , he was taken to ORG . According to the medical report , he was concussed and had bruises on his head . The investigating judge was informed of the incident .

On DATE the applicant appeared before the investigating judge again . His counsel was not present .

When the applicant was taken to the investigating judge for the fourth time on DATE , his counsel was present and he retracted his confession .

Following a criminal complaint lodged by the applicant ’s counsel against unidentified criminal police officers , the public prosecutor obtained a report from NORP police station rejecting the applicant ’s allegations . The public prosecutor also obtained the medical reports of CARDINAL and DATE . On DATE the public prosecutor decided not to prosecute and informed the applicant ’s counsel of the possibility of starting a subsidiary prosecution within DATE . Counsel did not do so .

On DATE ORG found the applicant and PERSON guilty of murder and sentenced each of them to DATE imprisonment . On DATE ORG quashed that judgment and remitted the case to the first - instance court for a retrial . It instructed the first - instance court to establish whether the applicant had been ill - treated by the police and whether any of his statements were therefore inadmissible .

At a hearing held on DATE , the applicant described his illtreatment in detail and named the alleged perpetrators for the first time . Counsel for PERSON then applied for TIME of that hearing to be sent to the public prosecutor with a view to prosecuting the police officers named by the applicant . The public prosecutor , who was present at the hearing , raised an objection . She emphasised that a criminal complaint in that connection had been dismissed on DATE and that her office had no intention of dealing with the same case again . Counsel for ORG then applied for that prosecutor to be excluded from the proceedings . On DATE the ORG rejected that application , but confirmed that the DATE decision might be reconsidered in view of the new facts , notably the names of the alleged perpetrators .

On DATE the ORG found the applicant guilty of murder and PERSON of incitement to murder and sentenced each of them to DATE imprisonment . It held that the applicant had indeed been beaten at NORP police station . The applicant ’s statements made there on DATE were thus declared inadmissible . However , it regarded the statements which the applicant had made before the investigating judge on CARDINAL , DATE and DATE as admissible . The court relied in that regard on an expert report prepared by a team of psychiatrists , stating that the applicant ’s fear must have receded by the date of his appearance before the investigating judge .

The applicant appealed against the judgment of DATE . He maintained , among other grounds of appeal , that the admission of the statements which he had made before the investigating judge in DATE should have also been barred . On CARDINAL DATE ORG upheld the first - instance judgment .

The applicant appealed against the judgment of CARDINAL DATE . He repeated that the admission of the statements which he had made before the investigating judge in DATE should have also been barred . On DATE ORG , in a different formation , upheld the second - instance judgment .

On DATE the applicant lodged a criminal complaint with the public prosecutor against CARDINAL police officers in relation to the events of DATE . On DATE the public prosecutor decided not to prosecute . The reasons for that decision are unknown because the applicant was not informed thereof and the entire file was allegedly destroyed in DATE ( that is , DATE after the decision not to prosecute ) .

In DATE both the applicant and his counsel applied for the reopening of the criminal proceedings described above . On DATE ORG rejected both applications . On DATE ORG upheld the decision of CARDINAL DATE .

The Criminal Code DATE ( Official Gazette of GPE nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , DATE , CARDINAL , and ORG nos . CARDINAL , CARDINAL , FAC , FAC , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL and CARDINAL ) was in force until DATE . The relevant Articles read as follows :

“ ( CARDINAL ) Any person acting in an official capacity who uses force or threat ... in order to extort a confession or another statement from an accused , a witness , or another person , shall be punished with imprisonment of DATE .

( CARDINAL ) If extortion is aggravated by serious violence or results in particularly serious consequences for an accused in criminal proceedings , the offender shall be punished with imprisonment of DATE . ”

“ Any person acting in an official capacity who ill - treats , insults or humiliates another , shall be punished with imprisonment of DATE . ”

The Code of Criminal Procedure DATE ( Official PERSON of GPE nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL and ORG nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL/CARDINAL ) entered into force on DATE . Most criminal offences ( including those mentioned above ) are subject to public prosecution , but some minor offences are only subject to private prosecution . Pursuant to LAW , the public prosecutor must prosecute when there is sufficient evidence that a certain individual has committed a criminal offence which is subject to public prosecution . LAW provides that when the public prosecutor decides not to prosecute such an offence because of lack of evidence , the victim of the offence may nevertheless start a subsidiary prosecution within DATE from the notification of that decision .

The Code of Criminal Procedure DATE , which was in force until DATE , contained similar provisions ( see Articles DATE and CARDINAL thereof ) .

NORP In accordance with LAW , as amended in DATE , the reopening of a criminal trial may be sought where ORG or an international court has found that the convicted person ’s rights have been breached in the trial .


The first applicant , PERSON , born in DATE , is a NORP citizen , currently residing in the GPE . The second applicant is his wife , PERSON , who was born on DATE and is a NORP citizen resident in ORG , GPE . The applicants are represented before the ORG by Mr PERSON , a solicitor practising in ORG . The facts of the case , as submitted by the parties , may be summarised as follows .

A.

The first applicant arrived in GPE on DATE . When he arrived , he had the status of a citizen of GPE and the Colonies ( PERSON ) by virtue of section CARDINAL of LAW DATE , because the GPE was a NORP colony at the time of his birth . He was given leave to enter as a work permit holder for a period of DATE . When the GPE became independent on CARDINAL DATE , he lost his ORG status and became a citizen of the GPE only . However , since the GPE remained in the ORG , he continued to hold the status of GPE citizen , which status he retains .

The first applicant met the second applicant , who is NORP , in DATE . They started to live together as man and wife and on DATE their twin children , Roseanne and PERSON , were born . On DATE the couple married , and on DATE the first applicant was granted indefinite leave to remain in GPE .

On DATE , the first applicant returned to the GPE to attend to family affairs due to his father ’s illness . On DATE he returned to GPE and on DATE he left for the GPE again . On DATE he returned to GPE and on DATE went back to the GPE .

The first applicant then suffered a series of health and employment problems and found it difficult to save enough money for his flight back to GPE . He and his wife did , however , keep in contact , and he also kept in contact with his children . The first applicant ’s father died in DATE .

On DATE , the first applicant arrived in GPE . The second applicant had come to meet him at the airport . The first applicant told the immigration officer who interviewed him that he sought admission as a visitor for DATE and that he intended to take employment on a farm owned by a friend . In addition , he told the immigration officer that he had a girlfriend in the GPE and to the customs officer he referred to that person as his “ wife ” . The immigration officer refused him leave to enter as a visitor because he was not satisfied that the first applicant intended to stay for the stated period since he had been unemployed in the GPE and he intended to work in GPE .

Although the first applicant did not seek entry as a returning resident at the time , the immigration officer and the chief immigration officer who authorised the decision to refuse leave to enter considered his application on that basis and concluded that he did not qualify as a returning resident since he had not been resident in GPE within DATE . Moreover , according to ORG there was no evidence that there had been any intervening devotion between the applicant and his family in GPE . Arrangements were made for his removal on DATE .

The first applicant applied to ORG for leave to apply for judicial review of the decision to refuse leave to enter . In the application the point was raised that he should be considered as someone having the right of abode in GPE under the Immigration Act DATE ( “ the DATE LAW ) . However , it was pointed out that under LAW CARDINAL(CARDINAL ) of LAW , as amended by LAW DATE ( “ the DATE LAW ) , only a female GPE citizen who was married to a NORP citizen would have the right of abode and that a male commonwealth citizen who was married to a NORP citizen did not . In addition , it was said that given that the case involved issues arising under LAW in conjunction with LAW , the Secretary of ORG should have exercised his discretion in favour of protecting the relevant Convention rights .

On DATE the court refused leave to apply for judicial review on the grounds that the Secretary of ORG had exercised his discretion properly .

The first applicant made a renewed application for leave to apply for judicial review to ORG , raising the same points . On DATE ORG refused leave on the grounds that the facts of the case were not such as to suggest that the discretion should have been exercised in favour of the applicant and that the Secretary of ORG had acted lawfully since he had considered all material factors before him and had exercised his discretion reasonably . In connection with the argument that the Secretary of ORG had failed properly to exercise his discretion as he had not taken full account of LAW considerations , ORG referred to the case of ex parte PERSON ( [ DATE ] CARDINAL AC CARDINAL ) and a line of subsequent decisions , including NORP v. ORG ex parte ORG QB CARDINAL ) .

The first applicant was deported to the GPE on DATE .

B. Relevant domestic law

DATE , section CARDINAL of LAW DATE was applicable . This section stated ( as relevant ) :

“ ( CARDINAL ) A person is LAW to have the right of abode in GPE if –

[ CARDINAL categories , ( a ) – ( b ) , none of which applied to the applicant ]

( CARDINAL ) A woman is under this LAW also to have the right of abode in GPE if she is a GPE citizen and either –

( a ) is the wife of any such citizen of GPE as is mentioned in subsection ( CARDINAL)(a ) , ( b ) or ( c ) above or any such GPE citizen as is mentioned in subsection ( CARDINAL)(d ) ; or

( b ) has at any time been the wife –

( i ) of a person then being such a citizen of GPE citizen ; ... . ”

On DATE , LAW DATE ( “ the DATE LAW ) came into force . LAW replaced the concept of “ citizenship of GPE and Colonies ” with various categories of citizenship , including “ NORP citizenship ” . It also prospectively removed the distinction between men and women which had been contained in the old section ORG ) of the DATE Act , whilst , however , retaining the right of abode for those who had obtained it under any provision in the old section CARDINAL , including subsection CARDINAL ) , which applied only to women . The new section CARDINAL , which is still in force , provides , so far as is material :

( a ) he is a NORP citizen ; or

( b ) he is a ORG citizen who –

( i ) immediately before the commencement of LAW DATE was a GPE citizen having the right of abode in GPE by virtue of section CARDINAL ) or section CARDINAL(CARDINAL ) of this LAW as then in force ; and

( ii ) has not ceased to be a ORG citizen in the meanwhile . ”

A person who does not have the right of abode requires leave to enter GPE . At all material times , a person who , like the first applicant , had been granted indefinite leave to remain and had then left GPE could be permitted to return as a “ returning resident ” provided he was not absent from GPE for a period of DATE ( Statement of Changes in Immigration Rules , ORG CARDINAL , paragraphs CARDINAL and CARDINAL ) .


The applicants , whose particulars appear in the appendix , were represented before the ORG by PERSON , a lawyer practising in GPE .

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

The applicants had originally served in the Police . On termination of their service they became entitled to a special DATE allowance for time served ( príspevok za službu ) pursuant to section CARDINAL et seq . of ORG in ORG ( Law no . PERSON . , as amended ) . The allowance was paid to them by ORG ( “ the NORP ” ) of ORG ( “ the Ministry ” ) and its amount was calculated as a percentage of the applicants ' DATE salary at the time of the termination of their service . The percentage depended on the number of DATE served . Under section CARDINAL ( CARDINAL ) of PERSON no . CARDINAL/CARDINAL Coll . the entitlement to the allowance expired once the officer in question recommenced “ service ” . The term “ service ” was understood to include also service in ORG ( PERSON informačná služba - “ the SIS ” ) . It was the duty of the officer receiving the allowance to report the recommencement of “ service ” to the ORG within DATE .

At various dates in DATE and DATE the individual applicants started to work for the ORG . They were subject to an order of the Director ( “ the Director ” ) of the ORG no . CARDINAL/CARDINAL which forbade them to report the recommencement of their “ service ” to the ORG so that their affiliation with the ORG would be concealed .

The applicants thus continued receiving the allowance from the ORG ( “ the paid allowance ” ) . At the same time they were receiving a salary from the ORG . The ORG was however withholding a part of this salary ( “ the withheld salary ” ) in an amount equal to the paid allowance . The applicants understood that the ORG would transfer the withheld salary to the ORG budget .

At various dates in DATE the applicants ' service in the ORG terminated and the latter reported the termination to the ORG .

The ORG subsequently reclaimed the paid allowance from the applicants on the ground that it had been paid to them without a valid legal title . The applicants unsuccessfully challenged the decision before the ORG , accepted the debt and commenced paying it in instalments .

The applicants then lodged demands with the ORG for repayment of the withheld salary . As their demands were not met , they lodged a claim with GPE ORG ( ORG súd ) and also sought interest for late payment of the principal amount .

In several separate decisions taken DATE ORG found that it had no jurisdiction to deal with the applicants ' claims against the ORG and that the body to determine the matter was the Director . ORG based its finding on sections CARDINAL ( CARDINAL ) , CARDINAL and CARDINAL et seq . of ORG in the Police , the ORG , ORG and ORG ( Law no . DATE . , as amended ) and section CARDINAL ( b ) of the LAW on ORG ( PERSON n. CARDINAL/CARDINAL Coll . , as amended ) . ORG thus referred the actions under LAW of ORG to the ORG for a determination by its Director and discontinued the judicial proceedings in their respect . ORG ( PERSON súd ) upheld the decision on appeal .

On numerous occasions DATE the applicants again turned to the SIS claiming repayment of the withheld salary plus penalty interests . Invoking the above judicial decisions the applicants demanded that the Director determine the matter by a formal decision and insisted that the repayment be made directly to them .

In DATE the ORG transferred an amount equal to a major part of the withheld salary of the applicant PERSON to his bank account .

At various dates in DATE the ORG informed the remaining CARDINAL applicants that the ORG had transferred an amount of money equal to the part of their withheld salary to the ORG . In substance this amount was identical to the paid allowance . The ORG further informed these applicants that the part of the paid allowance which they had already repaid in the meantime would be returned to them .

LAW CARDINAL governs the administrative judiciary . In accordance with its provisions administrative tribunals review the lawfulness of decisions taken by public administration authorities on the basis of administrativelaw actions under LAW ) CARDINAL of that LAW and administrativelaw appeals under LAW of that LAW . From DATE the relevant provisions of this LAW were amended by PERSON no . PERSON . in that administrative tribunals also have the jurisdiction to review the “ official conduct ” of public administration authorities . Law no . PERSON . further amended the provisions of this LAW by defining detailed rules concerning actions against the inactivity of authorities of public administration . These rules are laid down in a new LAW and entered into force on DATE .

By virtue of LAW the notion of “ official conduct ” also includes inactivity of the administrative authority concerned .

Pursuant to LAW administrative tribunals are entitled to decide in administrativelaw actions against decisions delivered by administrative authorities where such decisions have become final after the exhaustion of all ordinary remedies .

Under LAW in conjunction with LAW t any natural or legal person who alleges that an authority of public administration is not pursuing a matter , contrary to law and without a weighty reason may seek an order by an administrative tribunal to the authority concerned to proceed with the matter and to determine it within a fixed timelimit which can not be longer than DATE . Under Article CARDINALu a failure to comply with the order can be sanctioned by a fine of CARDINAL NORP korunas .

In its judgment ( rozsudok ) of DATE ( file no . CARDINAL Sž CARDINAL ) ORG found that ORG had been inactive in a set of administrative proceedings and ordered that the ORG give a final decision in the matter within DATE from delivery of its judgment .

In a resolution ( uznesenie ) of DATE ( file no . CARDINAL S CARDINAL/CARDINAL ) PERSON found that ORG wrongfully failed to determine the plaintiff 's objections in land adjustment proceedings which were conducted before that office . ORG ordered that ORG determine the objections within DATE and awarded the plaintiff reimbursement of her costs .

The right to protection of a person 's dignity , honour , reputation and good name is guaranteed by LAW . of LAW . According to LAW any natural person has the right to protection of his or her personal integrity , in particular his or her life and health , civil and human dignity , privacy , name and personal characteristics .

Any natural person has the right to request that any unjustified infringement of his or her personal integrity should be stopped and the consequences of such infringement eliminated , and to obtain appropriate satisfaction ( LAW ) .

LAW provides that in cases when the satisfaction obtained under LAW is insufficient , in particular because a person 's dignity and position in society have been considerably diminished , the injured person is entitled to financial compensation for non - pecuniary damage .


The applicant , Mr Róbert Matulay , is a NORP national who was born in DATE and lives in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

On DATE the applicant was apprehended by the police .

On DATE a police investigator accused the applicant and another person of a drugs offence .

On DATE ORG in GPE dismissed the applicant ’s complaint against the decision to remand him in custody .

On DATE the Bratislava II ORG dismissed the applicant ’s request for release on bail . On DATE ORG dismissed the applicant ’s complaint against that decision .

On DATE the Bratislava II ORG extended the applicant ’s detention until DATE .

On DATE the applicant was questioned by the police investigator . He confessed to the offence . The applicant expressed his regret and applied for release .

On DATE a public prosecutor informed the applicant that she had filed an indictment against him . In a separate letter of the same date the public prosecutor stated , in reply to the applicant ’s complaint , that the police investigator had not submitted to her the applicant ’s request for release of CARDINAL DATE . The public prosecutor notified the Bratislava II ORG thereof .

On DATE the Bratislava II ORG returned the case to the public prosecutor as , due to procedural shortcomings , the applicant had not been able to study the case file in an appropriate manner . ORG further decided that the applicant should remain detained on remand .

The applicant filed a complaint arguing that ORG had not decided on his request for release of DATE .

On DATE ORG in GPE quashed the firstinstance decision of DATE . ORG found that ORG had violated several provisions of LAW in that ( i ) a public prosecutor had attended the court meeting held in camera on DATE , and ( ii ) the presiding judge had not been entitled to deal with the applicant ’s case as he had earlier decided on his detention . ORG also noted that ORG had not decided on the applicant ’s request for release of DATE .

On DATE the Bratislava II ORG returned the case to the public prosecutor . It also examined the applicant ’s request for release and decided that the applicant should remain in custody .

On DATE the applicant filed a complaint . He requested that he should be released .

On DATE ORG in GPE dismissed the applicant ’s complaint . It found that ORG had rightly returned the case to the public prosecutor as the applicant ’s procedural rights had been violated at the previous stage of the proceedings . There were justified reasons to fear the applicant ’s re - offending in case of his release . In particular , the applicant was unemployed and he could commit drugs offences in order to earn his living .

On DATE a new indictment was filed against the applicant .

On DATE ORG ordered that the applicant be released . The evidence available indicated that the applicant had not played an important role in drug dealing . As a result of his detention his contacts with persons involved in such criminal activities had been cut . On DATE the applicant was released from detention .

ORG scheduled the hearing in the case for DATE and DATE .

On DATE the applicant informed the ORG , at the request of its Registry , that ORG had convicted the applicant of unauthorised production , possession and dealing in drugs on DATE . The court imposed a CARDINAL years’ prison sentence on both the applicant and his co - accused . The judgment became final in the applicant ’s respect as neither he nor the public prosecutor had appealed .

The co - accused appealed . The court of appeal modified the first - instance judgment in that it imposed a conditional prison sentence on him .

On DATE the applicant filed a complaint with ORG . He referred to the conduct of the proceedings by LAW ORG and ORG in GPE and alleged a violation of his rights under LAW and CARDINAL of the LAW in that his application for release had not been examined speedily and that the length of his detention was excessive . The applicant invoked LAW with reference to the authorities’ failure to decide on his application for release and to procedural shortcomings in the proceedings at the preliminary stage . Finally , the applicant alleged a violation of LAW ) of the LAW and its constitutional equivalent in that his right to defend himself had not been respected at the pre - trial stage .

On DATE ORG declared admissible the applicant ’s complaint under LAW and CARDINAL and LAW related to the examination by ORG in GPE of the application for release of CARDINAL DATE .

ORG rejected the remainder of the applicant ’s complaint . It held that it could not review the conduct of the proceedings by ORG as it had been open to the applicant to seek redress in that respect before ORG in GPE . As to the alleged violation of the applicant ’s right to have adequate time and facilities for the preparation of his defence , ORG noted that the case had been returned to the public prosecutor who had been ordered to eliminate the shortcomings complained of .

The decision on admissibility of the applicant ’s complaint was served on his representative on DATE .

On DATE ORG found that ORG in GPE , when dealing with the applicant ’s request for release of CARDINAL DATE , had violated the applicant ’s right under LAW and CARDINAL of the LAW .

The decision stated , in particular , that ORG had taken DATE to deal with the applicant ’s complaint against ORG decision of CARDINAL DATE to dismiss his request for release filed on DATE . Such a period was excessively long . The applicant had been prevented from filing fresh requests for release until a final decision on his request of CARDINAL DATE had been delivered . In ORG view , there had been no violation of LAW in that context as the relevant issue , i.e. delays in proceedings on the application for release , was covered by a special provision , namely LAW .

When deciding on the applicant ’s request for release on DATE ORG had not taken into account numerous and substantial procedural shortcomings which had occurred at the pre - trial stage and in the proceedings before the first - instance court . It had thereby violated the applicant ’s right under LAW and CARDINAL of the LAW to be released in case of unlawful detention .

ORG quashed ORG decision of DATE and returned the case to the latter court for further proceedings . It awarded SKK CARDINAL ( the equivalent of CARDINAL at that time ) to the applicant in respect of the violation of his right to a speedy review of his request for release .

ORG held that the finding of a violation of the applicant ’s right to be released taken together with its decision to quash ORG decision of DATE provided appropriate just satisfaction to the applicant . Finally , ORG ordered ORG to reimburse the applicant ’s costs incurred in the constitutional proceedings .

The following provisions of the LAW are relevant in the present case .

LAW provides that individuals can only be prosecuted or deprived of liberty for reasons and by means set out in the law . Under paragraph CARDINAL of Article CARDINAL , a person can be remanded in custody only upon a decision given by a court , and for reasons and for a period of time set out in the law .

Article CARDINAL is incorporated in the Seventh Section of the LAW entitled “ Right to judicial and other legal protection ” . LAW CARDINAL provides for the right to a hearing by a judge appointed in accordance with the law . Paragraph CARDINAL of Article CARDINAL guarantees to everyone the right to a hearing without unjustified delay , to have one ’s case heard in his or her presence and to comment on the evidence taken .