The applicants , Mr PERSON , Mr PERSON , Mr PERSON and Mr PERSON , are NORP nationals . They are represented before the ORG by Mr Bekir Kaya , a lawyer practising in GPE .

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

Until DATE the applicants lived in GPE , a village of the PERSON district in GPE . It is to be noted that the applicants did not submit any certificate attesting their ownership of property in GPE .

On DATE the applicants left their village due to pressure from the security forces .

On DATE the security forces set fire to the houses and livestock of the applicants . CARDINAL inhabitants of GPE , Mr PERSON and PERSON witnessed the incident .

On an unknown date , CARDINAL villagers from GPE were required to go to ORG in PERSON . They were then compelled to sign statements that the houses had been burned by members of the ORG ( NORP Workers’ Party ) .

On DATE Mr PERSON , Mr PERSON and PERSON PERSON filed a petition with ORG office in PERSON , complaining about the destruction of their property and requestiong redress for the damages they had suffered .

On DATE ORG issued a permenant search warrant to find the perpetrators of the burning down of the applicants’ property .

On DATE ORG in PERSON informed ORG office in PERSON that the perpetrators of the offence had been neither identified nor captured .

On DATE Mr PERSON , Mr PERSON and PERSON PERSON filed further petitions with ORG office in PERSON and the Governor ’s office in PERSON reiterating their demand for redress for the damage they had suffered .

On DATE ORG office in PERSON sent the permanent search warrant and ORG letter of DATE to the applicants .

The investigation carried out by the authorities indicated that the applicants had left their village of their own will . Statements taken from the ORG fellow villagers established that the security forces had not forced the applicants to leave their village . The applicants had left their village , taking their all belongings with them , DATE before the burning of their houses . In their petitions filed with ORG office and in their statements to ORG , the applicants never claimed that they had been forcibly evicted by the security forces .

CARDINAL eye - witnesses to the burning of the applicants’ houses stated that they had not seen anybody suspicious who could have perpetrated the burning down of the applicants’ abandoned houses . However , a former ORG militant PERSON stated that the houses had been burned by the ORG for revenge from the inhabitants of the GPE .

Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI ) .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , GPE . He was a student at the time of the events and earned a stipend of CARDINAL NORP ( MDL ) .

On DATE , TIME , the applicant attended a demonstration against the decision of ORG to abolish urban transport privileges for students . The demonstration was not authorised in accordance with the law and it appears from the statements of the parties that its organisers did not even apply for authorisation . The demonstration took place on FAC in GPE . In the beginning it was peaceful , but later some of the demonstrators started to throw eggs and stones at the Municipality building and the police intervened .

Around TIME the applicant was arrested by the police on grounds of being an active participant in an unauthorised demonstration in breach of Article CARDINAL § CARDINAL of the Code of Administrative Offences ( hereinafter referred to as the “ CAO ” ) . He was brought to the precinct police station TIME . TIME , he was detained in the police station and interrogated by several criminal investigators .

In his written statement given at the police station , the applicant mentioned , inter alia , that he had been arrested by the police when he and a journalist from ORG approached a group of policemen beating up a student . Since he had written on his forehead the word “ STUDENT ” , the police arrested him . He stated that he was an active participant but that he was not involved in violence .

On an unspecified date , the district police completed the administrative case file in connection with the offence committed by the applicant , mentioning inter alia that he had actively participated in an unauthorised meeting that had taken place in front of the building of ORG . The case was then referred to the competent district court .

Following an oral hearing on DATE , ORG imposed on the applicant an administrative fine of MDL CARDINAL ( the equivalent of MONEY ( ORG ) at the time ) provided for in Article CARDINAL/CARDINAL § CARDINAL of the ORG . In its order , the court stated , inter alia , that the applicant had actively participated in a demonstration of students , which had been carried out without authorisation from ORG , and that he had admitted having participated in the demonstration .

On DATE the applicant lodged an appeal against the above order . He argued that the fine had been unlawfully imposed on him and that the sanction was contrary to the freedom of assembly and to the right to strike guaranteed by Articles CARDINAL and CARDINAL of the LAW .

On DATE at TIME the Chişinău Regional Court heard the applicant ’s appeal in his absence and dismissed it .

According to the Government the summons for the hearing was sent on DATE by regular post and should have arrived at its destination on CARDINAL DATE .

According to the applicant , it was sent on DATE and was received by him on CARDINAL DATE after TIME

The postmark on the envelope , applied by the outgoing post office ( namely , by the first post office through which the envelope was routed ) indicates the date of DATE . The postmark applied by the incoming post office is not entirely legible .

On DATE , the applicant appeared before ORG to inquire about his case . He was issued with a copy of the judgment of ORG of DATE dismissing his appeal and upholding the order of ORG of DATE .

On DATE the applicant filed a request for annulment ( contestaţie în anulare ) with ORG against its decision of CARDINAL May CARDINAL , arguing that he had not been properly summonsed and consequently did not have a fair trial . The court refused to register the request on the ground that the ORG did not provide for such a remedy . On DATE and DATE respectively , the court rejected the repeated requests lodged by the applicant and his lawyer .

On DATE , the applicant accompanied by a lawyer of ORG and by an advocate made another attempt to file a request for annulment with ORG but the ORG refused to register it .

On DATE , following the bailiff ’s request , the applicant paid the fine provided for in the decision of DATE .

The relevant provisions of LAW in force at the material time read :

LAW aims at the protection of the personality , the rights and the legal interests of the physical and moral person , property , the ORG and public order , as well as at finding , preventing and eliminating the consequences of administrative offences and at educating citizens in the spirit of respect for the law .

... The sanction for the attempt to commit an administrative offence is established in accordance with the article which provides for the responsibility for that offence .

Only persons who were DATE at the moment of the commission of an administrative offence can be held responsible .

The person who has committed an administrative offence while acting in legitimate defence shall not be responsible ...

The administrative sanction is a measure of responsibility and is applied in order to educate the person who committed an administrative offence , as well as to deter any future similar acts by the perpetrator himself or by others .

In case of evasion of payment of a fine imposed for an administrative offence in bad faith , the court may replace the fine with imprisonment of DATE for every MDL CARDINAL , the maximum term being DATE .

( În caz de sustragere cu rea - voinţă de la achitarea amenzii aplicate pentru contravenţia administrativă savârşită , instanţa judecatorească poate înlocui această sancţiune cu arest administrativ , calculându - se zece zile de arest pentru un salariu minim , termenul fiind cel mult treizeci de zile . )

The conversion of an administrative fine into imprisonment is ordered by a court following a request lodged by the bailiff in accordance with LAW . According to the Government , the courts can convert administrative fines into imprisonment when the following circumstances are present :

- when a person who knows about a fine imposed on him / her refuses to appear before a bailiff after multiple summonses ;

- when the offender does not have any revenue or goods that could be sold ;

- when the offender is unemployed and accordingly does not have a salary from which the fine could be deducted ;

- when the offender has failed to comply with the time limit set by a court for the payment of an administrative fine .

A judgment by which an administrative fine is converted to imprisonment can be challenged before the hierarchically superior court . A person to whom such a measure is applied can always bring it to an end , by paying the administrative fine . The conversion can not be made in respect of pregnant women , women who have children DATE , persons aged DATE and invalids of the first and second degree .

As to the latter provision the parties submitted copies of CARDINAL recent judgments in which administrative fines have been converted into imprisonment , in some of which the conversion had been ordered in the absence of the offender and not in a public hearing . In CARDINAL of them the conversion was made due to the offender ’s failure to pay an administrative fine in time . At the same time the Government submitted copies of letters addressed to ORG by presidents of CARDINAL courts in which it was stated that in DATE their courts had converted administrative fines into imprisonment in CARDINAL cases .

The circumstances that mitigate the administrative responsibility are :

CARDINAL ) NORP repentance of the offender ;

CARDINAL ) prevention by the offender of the negative effects of the offence and voluntary compensation for the damage caused ;

CARDINAL ) NORP committing the offence under influence of strong emotions or amidst difficult personal or family circumstances ;

CARDINAL ) NORP committing the offence as a minor ;

CARDINAL ) committing the offence as a pregnant woman or as a woman who has a child aged DATE .

The circumstances that aggravate the administrative responsibility are :

CARDINAL ) NORP the continuation of illicit behaviour in spite of the demand to refrain from it , made by an authorised person ;

CARDINAL ) NORP the commission of a similar administrative offence for the second time within DATE or the commission of an offence by a person who had earlier committed a criminal offence ;

CARDINAL ) involving a minor in an activity contrary to ORG ;

CARDINAL ) NORP the commission of an offence by a group of people ;

CARDINAL ) NORP the commission of an offence during natural calamities ... ;

CARDINAL ) NORP the commission of an offence while under influence of alcohol ....

( CARDINAL ) The organisation and holding of an assembly without a prior declaration deposited with ORG or not authorised by it , and in breach of the conditions ( manner , place , time ) concerning the conduct of a meeting as indicated in the authorisation shall be punishable by a fine to be imposed on the organisers ( leaders ) of the assembly in an amount equal to CARDINAL times the minimum wage ....

( CARDINAL ) NORP participation in an assembly referred to in paragraph CARDINAL of the present article shall be punishable by a fine in an amount between MDL CARDINAL and CARDINAL .

The hearing regarding an administrative offence shall be conducted in the presence of the suspect . If the suspect is absent , the hearing can take place only when it is proved that he or she was informed in due time about the place and the time of the hearing and if he or she did not submit any request for adjournment .

A decision of the first instance court regarding an administrative offence may be challenged before the hierarchically superior court , by an application lodged by the interested person or by the prosecutor .

When the parties have been informed in due time about the date of the hearing but do not appear , the appeal may be heard in their absence ....

In examining a case regarding an administrative offence , the appeal instance may render CARDINAL of the following decisions :

CARDINAL ) NORP to leave the challenged decision unchanged and to reject the appeal application ;

CARDINAL ) NORP to quash the challenged decision and to order a re - examination by the first instance court ;

CARDINAL ) NORP to quash the challenged decision and to send the file to the investigation organs ;

CARDINAL ) NORP to quash the challenged decision and to stop the proceedings ;

CARDINAL ) NORP to change the administrative sanction and to mitigate the sanction imposed .

The appeal instance may quash the challenged decision for the following reasons : when the first instance court committed procedural mistakes or when it applied the wrong law . A decision which is correct on its merits can not be quashed for procedural reasons , except in the following circumstances :

CARDINAL ) NORP the case was examined by a set of judges which was not composed in accordance with the law ;

CARDINAL ) NORP the decision was not signed by the judge who examined the case or it was signed by a judge who did not participate at the trial of the case ;

CARDINAL ) NORP the decision was not pronounced by the judge who examined the case ;

CARDINAL ) NORP there were no minutes of the hearing , contrary to the law ;

CARDINAL ) NORP the case was examined without an interpreter , contrary to the law .

After examining the case , the appeal instance pronounces its decision . The decision does not have to contain any reasoning .

If an offender does not pay the fine within the time provided for in LAW , the amount of the fine shall be compulsorily deducted from his or her salary , pension , stipend or other income in accordance with the rules set in LAW .

If the offender does not have an employment or if the deduction of the fine from the salary , pension , stipend or other income is not possible , the amount of the fine shall be recovered from the forced sale of his or her personal belongings or of his or her part of a co - ownership ....

The relevant provisions of LAW in force at the material time read :

The accused is called before the investigator by means of a summons . The summons is handed to the accused and the certificate confirming the date of the receipt is returned to the investigator . The summoning can also be done by telephone or by telegram .

NORP The relevant provisions of LAW in force at the material time read :

The court informs the parties to the proceedings about the date and the place of the hearing by means of a summons ....

The summons is to be handed to the parties in due time , so that they have enough time to prepare for the hearing in front of the court . In any event , the summons should be handed to the defendant DATE of the hearing .

In a book entitled “ The Procedure in Administrative Offence cases ” by PERSON ( judge at ORG in GPE ) , ( Chişinău DATE ) , the author states the following : “ LAW provides for a number of procedural measures such as : detention , body search , search of property , administrative arrest ... The ORG provides for few procedural guarantees as it does not guarantee legal aid , presumption of innocence , etc . The ORG cases are heard by criminal sections of the courts .... Only the convicted person may pay the administrative fine ... It is illegal for the fine be paid by somebody else ” .


Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Josep Casadevall;Luis López Guerra

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE . He is currently detained in a prison in GPE , serving a life sentence imposed by ORG in the Territory of the Former GPE since DATE ( also known as ORG for the Former GPE , hereafter the ORG ) . He was represented before the ORG by Mr PERSON - GPE , a lawyer practising in GPE .

NORP The facts of the case , as submitted by the applicant and as apparent from documents accessible to the public , may be summarised as follows .

NORP On DATE , the ORG ’s Prosecutor indicted the applicant in the following terms :

“ THE PROSECUTOR OF THE TRIBUNAL

AGAINST

PERSON

INDICTMENT

The Prosecutor of ORG for the former GPE , pursuant to her authority under LAW ORG charges :

PERSON

with CRIMES AGAINST HUMANITY and VIOLATIONS OF THE LAWS AND CUSTOMS OF WAR as set forth below :

GENERAL ALLEGATIONS

ORG formed a significant part of the ORG [ i.e. PERSON ( “ ORG of the NORP Republic ” ) , ORG ] under the ultimate command of ORG , the Commander of ORG and Radovan KARADZIC , initially President of the Presidency of the NORP administration in GPE and , subsequently , as President of the ‘ ORG and designated ORG Commander of its armed forces .

By DATE the ORG controlled all the NORP territory around GPE , including established confrontation lines and artillery positions .

PERSON , during his period as ORG Commander of ORG , was in a position of superior authority to CARDINAL military personnel , formed into CARDINAL brigades .

As ORG Commander of ORG , PERSON demonstrated his authority and control over forces comprising and attached to ORG , inter alia , by participating in negotiations and the implementation of a heavy weapons total exclusion zone ( ORG ) , controlling access of PERSON and other ORG personnel to territory around GPE and , in particular , heavy weapon sites .

PERSON bears individual criminal responsibility for planning , instigating , ordering , committing , or otherwise aiding and abetting , in the planning , preparation or execution of the campaign of shelling and sniping against the civilian population of GPE and the acts set forth below by the forces and persons under his command , pursuant to LAW .

PERSON also bears individual criminal responsibility as a Commander of ORG , responsible for the conduct of subordinates in respect of whom he was in a position of superior authority . PERSON is responsible for the acts and omissions of his subordinates , knowing , or having reason to know , that the subordinates were about to commit such acts , or had done so , failing to take reasonable steps to prevent such acts , or to punish the perpetrators thereof . By failing to take the actions required of a person in superior authority , PERSON is responsible for the acts and omissions set forth below pursuant to LAW .

CHARGES :

COUNT CARDINAL ( INFLICTION OF TERROR )

From about CARDINAL DATE to CARDINAL DATE , PERSON , as Commander of NORP forces comprising or attached to ORG , conducted a protracted campaign of shelling and sniping upon civilian areas of GPE and upon the civilian population thereby inflicting terror and mental suffering upon its civilian population .

By his acts and omissions , PERSON is responsible for :

COUNT CARDINAL : Violations of the Laws or Customs of War ( unlawfully inflicting terror upon civilians as set forth in LAW I and LAW to LAW of DATE ) punishable under LAW .

COUNTS DATE ( SNIPING )

DATE and DATE , PERSON , as Commander of NORP forces comprising or attached to ORG , conducted a coordinated and protracted campaign of sniper attacks upon the civilian population of GPE , killing and wounding a large number of civilians of all ages and both sexes , such attacks by their nature involving the deliberate targeting of civilians with direct fire weapons . Specific instances of these attacks include , by way of representative allegations , those matters set forth in the First Schedule to this indictment .

ORG ( murder ) punishable under LAW .

COUNT CARDINAL : Crimes against Humanity ( inhumane acts - other than murder ) punishable under LAW ) of the Statute of the ORG .

COUNT CARDINAL : Violations of the Laws or Customs of War ( attacks on civilians as set forth in LAW I and LAW to LAW of DATE ) punishable under LAW .

COUNTS CARDINAL to CARDINAL ( SHELLING )

DATE and DATE , PERSON , as Commander of NORP forces comprising or attached to ORG , conducted a coordinated and protracted campaign of artillery and mortar shelling onto civilian areas of GPE and upon its civilian population . The campaign of shelling resulted in CARDINAL of civilians being killed or injured . Specific instances of this shelling include , by way of representative allegations , the matters set forth in the Second Schedule to this indictment .

COUNT CARDINAL : Crimes against Humanity ( murder ) punishable under Article CARDINAL ) of the Statute of the ORG .

COUNT CARDINAL : Violations of the Laws or Customs of War ( attacks on civilians as set forth in LAW I and LAW to LAW of DATE ) punishable under LAW . ”

This indictment was confirmed on DATE by Judge PERSON It was kept sealed until the applicant ’s arrest .

The applicant was arrested by ORG ) on DATE and transferred to the ORG DATE .

On DATE the ORG ’s Acting President assigned the applicant ’s case to ORG I.

On DATE the applicant made his initial appearance in open court , on which occasion he pleaded not guilty to all charges . On DATE the applicant was ordered to be placed in detention on remand until further order .

The applicant ’s trial opened on DATE . ORG sat in a formation of CARDINAL judges presided over by Judge PERSON , who had been elected to the ORG as a permanent judge DATE .

On DATE , on a motion lodged by the applicant , ORG acquitted the applicant of a number of sniping incidents but ordered the trial to continue for the remainder .

The trial closed on CARDINAL DATE . On DATE the ORG gave judgment . By a majority , it found the applicant guilty of Counts CARDINAL , CARDINAL , DATE , DATE and DATE , acquitted him of LAW and DATE and sentenced him to a single prison term of DATE . CARDINAL of the judges , Judge PERSON , expressed a partly dissenting opinion on conviction and sentence .

The applicant appealed against his conviction and sentence . The prosecution appealed against the sentence .

On DATE ORG gave judgment . It unanimously dismissed the applicant ’s appeal . By a majority , it allowed the prosecution ’s appeal and increased the sentence to life imprisonment , subject to credit being given for the time already spent in detention . Judge PERSON , the presiding judge , appended a partially dissenting opinion in which he expressed the view that the case ought to have been remitted for a reassessment of the sentence . Another judge , Judge PERSON , appended a dissenting opinion to the effect that the sentence imposed by ORG was not so low that it could be considered out of keeping with the ORG ’s sentencing practice . A third judge , Judge PERSON . , dissented with regard to the applicant ’s conviction on the first count of the indictment .

On DATE the ORG ’s Prosecutor presented an amended indictment against a different accused , Mr ORG . This indictment included the following passages :

“ CARDINAL . Shortly after ORG [ i.e. GPE and GPE ] was internationally recognised as an independent state on DATE , hostilities broke out in GPE , marking the beginning of a conflict within the city , which would last until DATE . Even before the conflict began , armed forces occupied strategic positions in and around GPE . The city was subsequently subjected to blockade , bombardment and sniper attacks from these positions . From DATE , ORG under the command and control of General PERSON used shelling and sniping to target civilian areas of the city and its civilian population and institutions , killing and wounding civilians , and thereby also inflicting terror upon the civilian population . Much of the bombardment and sniping was from positions in the hills around and overlooking GPE , from which the attackers had a commanding view of the city , its population and institutions . ”

and

“ CARDINAL . General PERSON is individually criminally responsible pursuant to Article CARDINAL(CARDINAL ) of the Statute of the Tribunal for the crimes referred to in DATE , and CARDINAL of the Statute of the ORG as alleged in this indictment , which he planned , instigated , ordered , committed , or in whose planning , preparation or execution he otherwise aided and abetted . By using the word ‘ ORG in this indictment , the ORG does not suggest that the accused physically committed any of the crimes charged personally . ‘ ORG in this indictment includes participation in a joint criminal enterprise .

The objective of the joint criminal enterprise within ORG was the elimination or permanent removal , by force or other means , of NORP , NORP , or other non - NORP inhabitants from large areas of ORG through the commission of crimes which are punishable under LAW , DATE , and CARDINAL of the Statute of the ORG . General PERSON participated in the joint criminal enterprise as a co - perpetrator and/or an aider and abettor .

Numerous individuals participated in this joint criminal enterprise . Each participant , by acts or omissions , significantly contributed to the overall objective of the enterprise . General PERSON worked in concert with or through other members of the joint criminal enterprise , including ... General PERSON [ the applicant ] ...

As Commander of the Main Staff of the ORG , General PERSON , acting individually and in concert with other members of the joint criminal enterprise , participated in the joint criminal enterprise from CARDINAL DATE until DATE in the following ways :

( a ) ORG , preparing , facilitating , or executing a campaign of persecutions , which included acts of genocide , within ORG , by establishing control of the municipalities listed in LAW of the indictment [ amongst others , Vogošća ] ; attacking and destroying non - NORP towns and villages , as well as looting , destroying , and/or appropriating residential , commercial and religious properties in the municipalities ; killing and terrorising the non - NORP inhabitants , and submitting them to cruel and inhumane treatment and conditions , including physical , psychological and sexual abuse , often in detention facilities ; using non - NORP for forced labour , including at front lines , and as human shields ; imposing restrictive and discriminatory measures on the non - NORP population ; and separating , deporting , and permanently removing non - NORP who did not subjugate themselves to NORP authorities ;

( b ) ORG , preparing , facilitating , or executing a protracted military campaign of artillery and mortar shelling and sniping into civilian areas of GPE and upon its civilian population and institutions , killing and wounding civilians , and thereby inflicting terror upon its civilian population ; ... ”

and

“ Count CARDINAL : GENOCIDE , punishable under ORG CARDINAL(CARDINAL)(a ) , GPE ) and CARDINAL ) of the Statute of the ORG ;

Count CARDINAL : COMPLICITY IN GENOCIDE , punishable under Articles CARDINAL ) , CARDINAL(CARDINAL ) and CARDINAL ) of the Statute of the ORG . ”

On DATE Judge PERSON gave an order granting the prosecution leave to file the amended indictment and confirming the indictment ( Article CARDINAL of LAW , see below ) .

On DATE the applicant challenged Judge PERSON ’s involvement in his own trial . The applicant argued that according to the indictment against ORG the acts of the “ joint criminal enterprise ” mentioned in paragraph CARDINAL had included murders amounting to “ genocide ” committed in the municipality of Vogošća , an area under the applicant ’s territorial responsibility , but that this crime was not included on the applicant ’s indictment . “ Genocide ” being a crime more serious than any with which the applicant had been charged , the confirmation of this indictment by Judge PERSON reflected on the latter ’s part a preconception that the applicant ’s guilt was great indeed .

On DATE the challenge was dismissed by Judge PERSON , who found that the confirmation of the amended indictment reflected no more than a provisional view of the validity of the charges against Mr Mladić and could not be seen as prejudicial to his impartiality vis - à - vis the applicant , who moreover continued to benefit from the presumption of innocence .

On DATE the applicant , through a firm of lawyers in GPE , lodged a communication with ORG under LAW to LAW ( “ the LAW ” ) . The complaints therein contained may be summarised as follows :

Under LAW ( “ LAW ” ) and LAW ( “ the LAW ” ) , that he had been arrested on a sealed indictment of which he had no knowledge , and was subjected to physical violence and humiliating treatment in the process ;

Under LAW and CARDINAL of the LAW , that the ICTY ’s Rules of Procedure and Evidence denied him the possibility to appeal against the decision to detain him on remand ;

Under LAW ( c ) of the LAW , that the length of the proceedings had been excessive ;

Under Articles CARDINAL and CARDINAL § QUANTITY of LAW and LAW ( d ) of the LAW , that he was compelled to give evidence himself before the evidence of the defence experts , or risk having to forgo the opportunity of giving evidence ;

Without naming any provision of either document , that ORG had applied incorrect substantive standards when sentencing him to life imprisonment ;

Under LAW of LAW and LAW , that since the dissenting opinions of ORG judge and CARDINAL of the dissenting ORG judges showed that reasonable doubt remained as to the applicant ’s guilt in relation to part of the crimes mentioned in the indictment and the law of the former GPE of GPE provided for a DATE maximum sentence for the remaining crimes , the life sentence imposed by ORG was unlawful ;

Under LAW , that ORG ought not to have increased his prison sentence from DATE to life without remitting the case to ORG . The latter lacked jurisdiction to establish facts for itself and had moreover deprived the applicant of an appeal against the life sentence .

The applicant asked ORG to order a full retrial by ORG .

The applicant has submitted a photocopy of a letter from the ORG High Commissioner for Human Rights dated DATE and bearing an illegible signature in the name of ORG . This letter , which does not give the name or address of the person or persons to whom it is addressed , is stated by the applicant to be ORG response to the above communication . It contains the following paragraph :

“ After careful consideration of the contents of your petition ( communication / complaint ) , received on CARDINAL DATE , we sincerely regret having to inform you that ORG of the High Commissioner for Human Rights is not in a position to assist you in the matter you raise , for the reasons indicated on the back of this letter . Accordingly , your petition is being returned to you . ”

A second photocopy , understood by the ORG to be of the reverse side of the letter , shows a box ticked in front of the following pre - printed sentence :

“ ORG can not examine petitions alleging violations of LAW ( ORG ) unless the ORG is also a party to LAW ( OP ) . DATE GPE [ filled in by hand ] – is not a State party to the Optional Protocol . ”

GPE ratified the Charter of ORG on DATE . As relevant to the present case , it provides as follows :

We the peoples of ORG determined

to save succeeding generations from the scourge of war , which twice in our lifetime has brought untold sorrow to mankind , and

to reaffirm faith in fundamental human rights , in the dignity and worth of the human person , in the equal rights of men and women and of nations large and small , and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained , and

to promote social progress and better standards of life in larger freedom ,

And for these ends

to practice tolerance and live together in peace with one another as good neighbours , and

to unite our strength to maintain international peace and security , and

to ensure , by the acceptance of principles and the institution of methods , that armed force shall not be used , save in the common interest , and

to employ international machinery for the promotion of the economic and social advancement of all peoples ,

Have resolved to combine our efforts to accomplish these aims

Accordingly , our respective ORG , through representatives assembled in the city of GPE , who have exhibited their full powers found to be in good and due form , have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as ORG .

The Purposes of ORG are :

To maintain international peace and security , and to that end : to take effective collective measures for the prevention and removal of threats to the peace , and for the suppression of acts of aggression or other breaches of the peace , and to bring about by peaceful means , and in conformity with the principles of justice and international law , adjustment or settlement of international disputes or situations which might lead to a breach of the peace ;

To develop friendly relations among nations based on respect for the principle of equal rights and self - determination of peoples , and to take other appropriate measures to strengthen universal peace ;

To achieve international co - operation in solving international problems of an economic , social , cultural , or humanitarian character , and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race , sex , language , or religion ; and

To be a centre for harmonizing the actions of nations in the attainment of these common ends .

The ORG and its Members , in pursuit of the Purposes stated in DATE , shall act in accordance with the following Principles .

The ORG is based on the principle of the sovereign equality of all its Members .

All Members , in order to ensure to all of them the rights and benefits resulting from membership , shall fulfill in good faith the obligations assumed by them in accordance with the present LAW .

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security , and justice , are not endangered .

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state , or in any other manner inconsistent with the Purposes of ORG .

All Members shall give ORG every assistance in any action it takes in accordance with the present LAW , and shall refrain from giving assistance to any state against which ORG is taking preventive or enforcement action .

The Organization shall ensure that states which are not Members of ORG act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security .

Nothing contained in the present Charter shall authorize ORG to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter ; but this principle shall not prejudice the application of enforcement measures under LAW .

NORP In order to ensure prompt and effective action by ORG , its Members confer on the ORG primary responsibility for the maintenance of international peace and security , and agree that in carrying out its duties under this responsibility ORG acts on their behalf . ...

The Members of ORG agree to accept and carry out the decisions of ORG in accordance with the present Charter .

ORG may establish such subsidiary organs as it deems necessary for the performance of its functions .

The Security Council shall determine the existence of any threat to the peace , breach of the peace , or act of aggression and shall make recommendations , or decide what measures shall be taken in accordance with ORG CARDINAL and DATE , to maintain or restore international peace and security .

In order to prevent an aggravation of the situation , ORG may , before making the recommendations or deciding upon the measures provided for in Article CARDINAL , call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable . Such provisional measures shall be without prejudice to the rights , claims , or position of the parties concerned . The ORG shall duly take account of failure to comply with such provisional measures .

ORG may decide what measures not involving the use of armed force are to be employed to give effect to its decisions , and it may call upon the Members of ORG to apply such measures . These may include complete or partial interruption of economic relations and of rail , sea , air , postal , telegraphic , radio , and other means of communication , and the severance of diplomatic relations .

Should the ORG consider that measures provided for in Article CARDINAL would be inadequate or have proved to be inadequate , it may take such action by air , sea , or land forces as may be necessary to maintain or restore international peace and security . Such action may include demonstrations , blockade , and other operations by air , sea , or land forces of Members of ORG .

All Members of ORG , in order to contribute to the maintenance of international peace and security , undertake to make available to ORG , on its call and in accordance with a special agreement or agreements , armed forces , assistance , and facilities , including rights of passage , necessary for the purpose of maintaining international peace and security .

Such agreement or agreements shall govern the numbers and types of forces , their degree of readiness and general location , and the nature of the facilities and assistance to be provided .

The agreement or agreements shall be negotiated as soon as possible on the initiative of ORG . They shall be concluded between ORG and Members or between ORG and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes .

The action required to carry out the decisions of ORG for the maintenance of international peace and security shall be taken by all the Members of ORG or by some of them , as ORG may determine .

Such decisions shall be carried out by the Members of ORG directly and through their action in the appropriate international agencies of which they are members .

The Members of the ORG shall join in affording mutual assistance in carrying out the measures decided upon by ORG .

In the event of a conflict between the obligations of the Members of ORG under the present LAW and their obligations under any other international agreement , their obligations under the present LAW shall prevail .

The ORG was established by ORG / RES/CARDINAL of CARDINAL DATE , which reads as follows :

“ ORG ,

Reaffirming its resolutions CARDINAL ( DATE ) of CARDINAL DATE and all subsequent relevant resolutions ,

Having considered the report of the Secretary - General ( ORG and GPE ) pursuant to paragraph CARDINAL of resolution CARDINAL ( DATE ) ,

Expressing once again its grave alarm at continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former GPE , and especially in GPE , including reports of mass killings , massive , organized and systematic detention and rape of women , and the continuance of the practice of ‘ ethnic PERSON , including for the acquisition and the holding of territory ,

Determining that this situation continues to constitute a threat to international peace and security ,

Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them ,

Convinced that in the particular circumstances of the former GPE the establishment as an ad hoc measure by ORG tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the restoration and maintenance of peace ,

Believing that the establishment of an international tribunal and the prosecution of persons responsible for the above - mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed ,

Noting in this regard the recommendation by ORG of ORG of ORG on the Former GPE for the establishment of such a tribunal ( PERSON ) ,

Reaffirming in this regard its decision in LAW ( DATE ) that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former GPE since DATE ,

Considering that , pending the appointment of the Prosecutor of ORG , ORG established pursuant to LAW ( DATE ) should continue on an urgent basis the collection of information relating to evidence of grave breaches of LAW and other violations of international humanitarian law as proposed in its interim report ( S/CARDINAL ) ,

Acting under LAW of ORG ,

Approves the report of the Secretary - General ;

Decides hereby to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former GPE DATE and a date to be determined by ORG upon the restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the above - mentioned report ;

Requests the Secretary - General to submit to the judges of ORG , upon their election , any suggestions received from GPE for the rules of procedure and evidence called for in LAW ;

Decides that all GPE shall cooperate fully with ORG and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all GPE shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the LAW , including the obligation of GPE to comply with requests for assistance or orders issued by a Trial Chamber under LAW ;

Urges States and intergovernmental and non - governmental organizations to contribute funds , equipment and services to ORG , including the offer of expert personnel ;

Decides that the determination of the seat of ORG is subject to the conclusion of appropriate arrangements between ORG and the GPE acceptable to the ORG , and that ORG may sit elsewhere when it considers it necessary for the efficient exercise of its functions ;

Decides also that the work of ORG shall be carried out without prejudice to the right of the victims to seek , through appropriate means , compensation for damages incurred as a result of violations of international humanitarian law ;

Requests the Secretary - General to implement urgently the present resolution and in particular to make practical arrangements for the effective functioning of ORG at the earliest time and to report periodically to the ORG ;

Decides to remain actively seized of the matter . ”

Annexed to the resolution was the “ Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former GPE since DATE ” . Elements of the Statute relevant to the case before the ORG are the following :

The judge of ORG to whom the indictment has been transmitted shall review it . If satisfied that a prima facie case has been established by the Prosecutor , he shall confirm the indictment . If not so satisfied , the indictment shall be dismissed . ...

All persons shall be equal before ORG .

In the determination of charges against him , the accused shall be entitled to a fair and public hearing , subject to LAW [ protection of victims and witnesses ] .

The accused shall be presumed innocent until proved guilty according to the provisions of the present Statute .

In the determination of any charge against the accused pursuant to the present Statute , the accused shall be entitled to the following minimum guarantees , in full equality :

( a ) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him ;

( b ) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing ;

( c ) to be tried without undue delay ;

( d ) to be tried in his presence , and to defend himself in person or through legal assistance of his own choosing ; to be informed , if he does not have legal assistance , of this right ; and to have legal assistance assigned to him , in any case where the interests of justice so require , and without payment by him in any such case if he does not have sufficient means to pay for it ;

( e ) to examine , or have examined , the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ;

( f ) to have the free assistance of an interpreter if he can not understand or speak the language used in ORG ;

( g ) not to be compelled to testify against himself or to confess guilt .

The Appeals Chamber shall hear appeals from persons convicted by ORG or from the Prosecutor on the following grounds :

( a ) an error on a question of law invalidating the decision ; or

( b ) an error of fact which has occasioned a miscarriage of justice .

ORG may affirm , reverse or revise the decisions taken by ORG .

The Convention on the Privileges and Immunities of the United Nations of CARDINAL DATE shall apply to ORG , the judges , the Prosecutor and his staff , and the Registrar and his staff .

The judges , the Prosecutor and the Registrar shall enjoy the privileges and immunities , exemptions and facilities accorded to diplomatic envoys , in accordance with international law .

The staff of the Prosecutor and of the Registrar shall enjoy the privileges and immunities accorded to officials of ORG under articles V and ORG referred to in paragraph CARDINAL of this article .

Other persons , including the accused , required at the seat of ORG shall be accorded such treatment as is necessary for the proper functioning of ORG .

The International Tribunal shall have its seat at GPE . ”

As relevant to the case before the ORG , the ORG between ORG and GPE concerning ORG committed in the Territory of the Former GPE since DATE ( “ LAW ” ) reads as follows :

“ ORG and GPE ,

Whereas ORG acting under LAW decided , by paragraph CARDINAL of its resolution CARDINAL ( DATE ) of CARDINAL DATE , inter alia ‘ that an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former GPE since GPE ;

Whereas ORG is established as a subsidiary organ within the terms of LAW ;

Whereas ORG , in paragraph CARDINAL of its resolution CARDINAL ( DATE ) of CARDINAL DATE further inter alia decided that ‘ the determination of the seat of ORG is subject to the conclusion of appropriate arrangements between ORG and the GPE acceptable to the Council’ ;

Whereas the Statute of ORG , in its DATE , provides that ‘ the ORG shall have its seat at The Hague’ ;

Whereas ORG and GPE wish to conclude an Agreement regulating matters arising from the establishment and necessary for the proper functioning of ORG in GPE ;

Have agreed as follows . ...

This Agreement shall regulate matters relating to or arising out of the establishment and the proper functioning of the ORG in GPE .

LAW and LAW shall be applicable mutatis mutandis to the ORG , its property , funds and assets , to the premises of the ORG , to the ORG , the Prosecutor and the Registrar , the officials of the ORG and persons performing missions for the ORG . ”

The expressions “ General Convention ” and “ LAW ” refer to ORG adopted by ORG of ORG on DATE and LAW of DATE , respectively ( Article I ( u ) and ( v ) of ORG ) .

The LOC of the ORG shall be under the control and authority of the ORG , as provided in this Agreement .

Except as otherwise provided in this LAW or in LAW , the laws and regulations of the host country shall apply on the premises of the ORG .

The ORG shall have the power to make regulations operative on the premises of the ORG for the purpose of establishing therein the conditions in all respects necessary for the full execution of its functions . The ORG shall promptly inform the competent authorities of regulations thus enacted in accordance with this paragraph . No law or regulation of the host country which is inconsistent with a regulation of the ORG shall , to the extent of such inconsistency , be applicable within the premises of the ORG .

Any dispute between the ORG and the host country , as to whether a regulation of the ORG is authorised by this LAW , or as to whether a law or regulation of the host country is inconsistent with any regulation of the ORG authorised by this Article , shall be promptly settled by the procedure set out in LAW , paragraph CARDINAL of this Agreement [ i.e. arbitration ] . Pending such settlement , the regulation of the ORG shall apply and the law or regulation of the host country shall be inapplicable on the premises of the ORG to the extent that the ORG claims it to be inconsistent with its regulation .

The host country shall not exercise its criminal jurisdiction over persons present in its territory , who are to be or have been transferred as a suspect or an accused to the LOC of the ORG pursuant to a request or an order of the ORG , in respect of acts , omissions or convictions prior to their entry into the territory of the host country .

The immunity provided for in this Article shall cease when the person , having been acquitted or otherwise released by the ORG and having had for a period of DATE from the date of his or her release an opportunity of leaving , has nevertheless remained in the territory of the host country , or having left it , has returned . ”

As relevant to the case before the ORG , the ICTY ’s Rules of Procedure and Evidence provide as follows :

( A ) A Judge may not sit on a trial or appeal in any case in which he has a personal interest or concerning which he has or has had any association which might affect his impartiality . He shall in any such circumstance withdraw , and the President shall assign another Judge to sit in his place .

( B ) Any party may apply to the Presiding Judge of a ORG for the disqualification and withdrawal of a Judge of that ORG from a trial or appeal upon the above grounds . The Presiding Judge shall confer with the Judge in question , and if necessary the ORG shall determine the matter . If the ORG upholds the application , the President shall assign another Judge to sit in place of the disqualified Judge .

( C ) The Judge of ORG who reviews an indictment against an accused , pursuant to LAW , shall not sit as a member of ORG for the trial of that accused . ... ”

NORP The member States of ORG ( ORG ) have entered into an agreement ( Agreement between the Parties to ORG regarding the Status of their Forces , GPE , DATE , as supplemented by LAW of DATE ( subsequently amended in DATE , DATE and DATE ) – “ ORG ” ) . It regulates , among other things , criminal jurisdiction over members of their armed forces serving on each other ’s territory . Article VII of this Agreement provides as follows :

“ CARDINAL . Subject to the provisions of this Article ,

a. the military authorities of the sending ORG shall have the right to exercise within the receiving ORG all criminal and disciplinary jurisdiction conferred on them by the law of the sending ORG over all persons subject to the military law of that ORG ;

b. the authorities of the receiving ORG shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving ORG and punishable by the law of that ORG .

a. NORP The military authorities of the sending State shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that State with respect to offences , including offences relating to its security , punishable by the law of the sending State , but not by the law of the receiving State .

b. The authorities of the receiving ORG shall have the right to exercise exclusive jurisdiction over members of a force or civilian component and their dependents with respect to offences , including offences relating to the security of that ORG , punishable by its law but not by the law of the sending state .

c. For the purposes of this paragraph and of paragraph CARDINAL of this Article a security offence against a ORG shall include :

i. treason against the ORG ;

ii . NORP sabotage , espionage or violation of any law relating to official secrets of that State , or secrets relating to the national defence of that State .

NORP In case where the right to exercise jurisdiction is concurrent the following rules shall apply :

a. The military authorities of the sending ORG shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to

i. NORP offences solely against the property or security of that State , or offences solely against the person or property of another member of the force or civilian component of that State or of a dependent ;

ii . NORP offences arising out of any act or omission done in the performance of official duty .

b. In the case of any other offence the authorities of the receiving ORG shall have the primary right to exercise jurisdiction .

c. If the ORG having the primary right decides not to exercise jurisdiction , it shall notify the authorities of the other ORG as soon as practicable . The authorities of the ORG having the primary right shall give sympathetic consideration to a request from the authorities of the other ORG for a waiver of its right in cases where that other state considers such waiver to be of particular importance .

The foregoing provisions of this Article shall not imply any right for the military authorities of the sending ORG to exercise jurisdiction over persons who are nationals of or ordinarily resident in the receiving ORG , unless they are members of the force of the sending ORG .

a. The authorities of the receiving and sending states shall assist each other in the arrest of members of a force or civilian component or their dependents in the territory of the receiving ORG and in handing them over to the authority which is to exercise jurisdiction in accordance with the above provisions .

b. The authorities of the receiving ORG shall notify promptly the military authorities of the sending ORG of the arrest of any member of a force or civilian component or a dependent .

c. The custody of an accused member of a force or civilian component over whom the receiving state is to exercise jurisdiction shall , if he is in the hands of the sending ORG , remain with that ORG until he is charged by the receiving ORG .

a. The authorities of the receiving and sending GPE shall assist each other in the carrying out of all necessary investigations into offences , and in the collection and production of evidence , including the seizure and , in proper cases , the handing over of objects connected with an offence . The handing over of such objects may , however , be made subject to their return within the time specified by the authority delivering them .

b. The authorities of the Contracting parties shall notify one another of the disposition of all cases in which there are concurrent rights to exercise jurisdiction .

a. A death sentence shall not be carried out in the receiving ORG by the authorities of the sending ORG if the legislation of the receiving state does not provide for such punishment in a similar case .

b. The authorities of the receiving ORG shall give sympathetic consideration to a request from the authorities of the sending ORG for assistance in carrying out a sentence of imprisonment pronounced by the authorities of the sending ORG under the provision of this LAW within the territory of the receiving ORG .

Where an accused has been tried in accordance with the provisions of this LAW by the authorities of one ORG and has been acquitted , or has been convicted and is serving , or has served , his sentence or has been pardoned , he may not be tried again for the same offence within the same territory by the authorities of ORG . However , nothing in this paragraph shall prevent the military authorities of the sending ORG from trying a member of its force for any violation of rules of discipline arising from an act or omission which constituted an offence for which he was tried by the authorities of ORG .

Whenever a member of a force or civilian component of a dependent is prosecuted under the jurisdiction of a receiving ORG he shall be entitled :

a. to a prompt and speedy trial ;

b. to be informed , in advance of trial , of the specific charge or charges made against him ;

c. to be confronted with the witnesses against him ;

d. to have compulsory process for obtaining witnesses in his favour , if they are within the jurisdiction of the receiving ORG ;

e. to have legal representation of his own choice for his defence or to have free or assisted legal representation under the conditions prevailing for the time being in the receiving ORG ;

PERSON if he considers it necessary , to have the services of a competent interpreter ; and

g. to communicate with a representative of the Government of the sending ORG and when the rules of the court permit , to have such a representative present at his trial .

a. Regularly constituted military units or formations of a force shall have the right to police any camps , establishment or other LOC which they occupy as the result of an agreement with the receiving ORG . The military police of the force may take all appropriate measures to ensure the maintenance of order and security on such LOC .

b. Outside these LOC , such military police shall be employed only subject to arrangements with the authorities of the receiving ORG and in liaison with those authorities , and in so far as such employment is necessary to maintain discipline and order among the members of the force .

Each Contracting Party shall seek such legislation as it deems necessary to ensure the adequate security and protection within its territory of installations , equipment , property , records and official information of other Contracting Parties , and the punishment of persons who may contravene laws enacted for that purpose . ”

An additional agreement concluded in DATE ( Agreement among GPE Parties to ORG and the other GPE participating in the Partnership for Peace regarding the Status of their Forces , GPE , DATE ) extends the territorial application of this provision to non - ORG member GPE participating in ORG .

On DATE the Government of GPE and GPE and the Government of GPE , acting in pursuance of a resolution of ORG under LAW of CARDINAL DATE ) , concluded an agreement under which ORG undertook to host a ORG for the purpose and the duration of a trial under NORP law and procedure of CARDINAL NORP nationals accused of bombing a civilian passenger aircraft over GPE , GPE , in DATE ( Agreement between the Government of GPE and GPE and the Government of GPE concerning a NORP trial in the GPE ( with annexes ) , [ DATE ] CARDINAL United Nations Treaty Series – UNTS – pp . CARDINAL et seq . ) . ORG in the GPE existed until DATE .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants , Mr PERSON and Mr PERSON are NORP nationals who were born in DATE and DATE respectively and live in GPE PERSON ’s . Their application was lodged on DATE . They were represented before the ORG by Dr PERSON , a lawyer practising in PERSON .

NORP , may be summarised as follows .

The applicants are full - time farmers and farm a considerable area of land which is partly owned and partly held on agricultural lease by them following the death of their father . Prior to their father ’s death the applicants also farmed the said land . This land included QUANTITY which had been earmarked for the building of a road . This parcel of land will hereinafter be referred to as land X.

On DATE the ORG late father received a letter from ORG asking whether he had come to an agreement over land X with company M who had been attempting to take control of the land . He was informed that failure to reply within DATE would lead to expropriation proceedings being commenced .

Having failed to reach an agreement for the purchase of land X from the applicants , on DATE Company M asked the Government to expropriate the said land , it constituting the only access to its property . At around the same time Company M applied for a permit to build CARDINAL apartments and CARDINAL garages on its property .

By a declaration published in ORG of DATE , under ORG ) LAW ( “ LAPPO ” ) , LAW of LAW , it was stated that land X was being expropriated for a public purpose .

On DATE the applicants and their father ( hereinafter the applicants ) instituted constitutional redress proceedings before ORG ( FAC ) in its constitutional jurisdiction . They invoked Articles CARDINAL , in that their land constituted their only means of making a living , CARDINAL and CARDINAL of the Convention and CARDINAL of Protocol No . CARDINAL since no compulsory taking of land could occur without the payment of adequate compensation and particularly because the taking at issue had been effected solely in the interests of third parties and was not therefore in the public interest . The applicants contended that the proposed street would divide their farm and cultivated land in a way that reduced their very productive land and would make cultivation very different with respect to irrigation and manuring . The existing water reservoirs and livestock would be separated from the cultivated fields , a circumstance which would be disastrous for their livelihood . They noted that they had been cultivating and breeding animals on the said land for DATE , long before the arrival of the present developer . Moreover , they had not been informed of the expropriation until work on the construction of the road was commenced .

The following witness testimony was heard : The architect of ORG submitted that LAW provided that when a person wanted to develop land the developer had to ensure road access to such land and when this was not possible because the owners would not sell the land , there existed a legal process by which the developer could ask the Commissioner of Lands to expropriate the said land . The land would then be expropriated by the ORG and the developer would pay for the said land . An official of ORG submitted that land X had been expropriated in the public interest . Various requests had been made for its expropriation but eventually ORG had signed a deed of obligation . The ORG had then expropriated the land . However , the applicants had not accepted the compensation offered to them and it was then deposited in an interest - bearing account . Another official of ORG submitted that the taking had been in the public interest as the land had already been earmarked for the building of a road . He added that although a request had been made by a third party , once expropriated the land remained the property of the Government .

By a judgment of CARDINAL DATE the court rejected all the complaints . Noting the lack of pleadings on the matter , it held that the expropriation could not be considered as inhuman or degrading treatment under LAW CARDINAL could not apply since the case did not concern the expropriation of a home . Nor did any issue arise under LAW as the provision did not provide for a judicial process before the initiation of an expropriation . As to LAW in respect of which proper pleadings had been filed , the court noted that there had been an interference with the applicants’ property rights ( partly a deprivation in so far as they owned part of the land , and for the rest a control of use in so far as they held part of the land on agricultural lease ) . The interference had been in accordance with the law , namely the PERSON , and the applicants had been offered compensation which they had not accepted . The court established that the applicants could not have been unaware of the expropriation , the details having been published in ORG . Moreover , land X had been earmarked for the development of a road DATE . A representative had been on site to estimate the value of the land and had informed the applicants that it was being expropriated . As to the public interest , it considered that LAW did not exclude that an expropriation could also serve the interests of third parties . Thus , while it was true that the expropriation in the present case had been triggered by a third party ’s request , since the land had originally been earmarked as a road it could not be said that the taking had not been in the public interest . As to the proportionality of the measure , the court considered that , bearing in mind that land X constituted CARDINAL of the applicants’ entire property , and that the applicants only owned CARDINAL of the land the rest being held on lease , the applicants would not be made to bear an excessive burden . There had therefore been no violation of the said provision .

On DATE the applicants appealed to ORG . By a judgment of DATE ORG rejected their claims . The court noted that although in their initial application various issues were pleaded , also in relation to the expropriation , the ORG appeal had focused on the lack of a public interest . The court held that , as in the cases regarding expropriations for the purposes of the GPE project , a hospital and a national theatre , and although development of the land was to be carried out by a private third party who would benefit financially from the project , this did not diminish the public interest involved , which in the present case consisted in providing access to a housing complex . Indeed , the Government had a duty to deal with town planning and in consequence the taking in the present case , although to the advantage of third parties , had been made in pursuance of legitimate social and economic policies , namely to create housing for the general public served by adequate roads .

Other lawsuits were instituted by the applicants or their late parents , but none were successful . Details of these lawsuits have not been submitted .

On DATE a new declaration was published in respect of the same land . A new set of constitutional proceedings was instituted in this respect . These proceedings are still pending .

Article CARDINAL of the PERSON , in so far as relevant , reads as follows :

“ " public purpose " means any purpose connected with exclusive government use or general public use , or connected with or ancillary to the public interest or utility ( whether the land is for use by the ORG or otherwise ) or with or to town - planning or reconstruction or the generation of employment , the furtherance of tourism , the promotion of culture , the preservation of the national or historical identity , or the economic well - being of the ORG or any purpose connected with the defence of GPE or connected with or ancillary to naval , military or air operations ; and includes any other purpose specified as public by any enactment ; and for the purposes of this definition , where the purpose for the exercise of any right under this GPE is connected with the utilisation of any land or any right in connection or in relation therewith for any purpose connected with the supply , storage or distribution of fuel or other sources of energy , or in connection with the provision of any utility or municipal services or infrastructural project shall be deemed to be connected with or ancillary to the public interest or utility ; ”


DASSA FOUNDATION AND OTHERS v. LIECHTENSTEIN

The first applicant , ORG , and the second applicant , ORG , are legal entities incorporated under GPE law in DATE which have their registered offices in GPE . The third applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . According to the statutes of the first and the second applicant , the third applicant is the sole beneficiary of their assets . The applicants were represented before the ORG by PERSON and Mr PERSON of ORG , a law firm practising in GPE .

On DATE ORG of GPE ( PERSON ) in GPE , in investigation proceedings on suspicion of money laundering against PERSON and unknown further perpetrators committed in DATE ( file no . CARDINAL UR CARDINAL.CARDINAL ) , ordered the seizure for a duration of DATE of all assets which the first and second applicants had deposited with the ORG company and prohibited the latter to dispose of these assets pursuant to section GPE of LAW ( see ‘ Relevant domestic and international law’ below ) . It found that the investigations against PERSON , the former legal representative of the first and second applicants , had revealed that the third applicant had probably bribed several judges in GPE together with another person . The third applicant was suspected of having transferred the proceeds of these offences to the applicant foundations , which were attributable to him , in order to conceal that the money had originated from criminal acts . Therefore , the accounts of the foundations had to be blocked in order to safeguard the subsequent absorption of the profits ( NORP der GPE ) or the forfeiture of the assets in accordance with section PERSON of LAW .

On DATE ORG of ORG requested ORG to extend the seizure of the foundations’ assets for DATE .

On DATE ORG , acting in the course of independent objective forfeiture proceedings ( objektives ORG ) under section CARDINAL of LAW ( see ‘ Relevant domestic and international law’ below ) against the applicant foundations ORG ( file no . TIME ) , prolonged the seizure of the foundations’ assets ordered by it on DATE for DATE pursuant to section GPE CARDINAL of the Code of Criminal Procedure .

ORG noted that the third applicant , being the beneficiary of the foundations , had been sentenced by ORG to eleven years’ imprisonment on CARDINAL DATE with respect to the assets at issue in the present forfeiture proceedings . This judgment was not final yet . As the present proceedings were complex and involved inter - State relations , it had not yet been possible to terminate the investigations .

On DATE ORG of ORG ) , in the course of the objective forfeiture proceedings concerning the assets of the applicant foundations , endorsed ORG decision of CARDINAL DATE , confirming that court ’s reasoning ( section MONEY § CARDINAL of the Code of Criminal Procedure ) .

On DATE the first and the second applicant , represented by counsel , lodged an appeal against the decision of ORG of DATE with ORG . They argued that the initial seizure of its assets on DATE had been ordered by ORG for DATE in criminal investigation proceedings on suspicion of money laundering against PERSON In its decision of CARDINAL DATE ORG had then ordered a prolongation of this seizure . However , this prolongation had been made in different proceedings , namely in the course of objective forfeiture proceedings concerning the foundations’ assets , in which there had never been an initial blocking of accounts . Therefore , the prolongation order was unlawful . The criminal proceedings against PERSON were terminated by a final judgment so that a continued blocking of accounts in these proceedings was no longer possible .

Moreover , as ORG order was made in objective forfeiture proceedings it could only be based on section MONEY § CARDINAL of LAW ( see ‘ Relevant domestic and international law’ below ) . However , this provision had entered into force only on DATE ; before that date , there was no legal basis for ordering the forfeiture of the assets in question . The third applicant and others were suspected of having received money for offences committed in DATE and of having transferred CARDINAL and MONEY respectively to the account of the applicant foundations in DATE , that is , long before DATE . Therefore , applying section CARDINAL § CARDINAL of LAW in order to prolong the blocking of the foundations’ accounts violated the prohibition of retroactive punishment guaranteed by section CARDINAL read in conjunction with section CARDINAL § CARDINAL of LAW ( see ‘ Relevant domestic and international law’ below ) and LAW .

ORG transmitted the appeal to ORG ( PERSON ) .

On DATE ORG dismissed the applicant foundations’ appeal . Referring to its previous case - law , it found that it had jurisdiction to deal with the appeal . As an exception from the rule laid down in section CARDINAL § CARDINAL of the Code of Criminal Procedure ( see ‘ Relevant domestic and international law’ below ) , which was authorised by that provision , no appeal lay to ORG against ORG decision on the prolongation of the seizure of the assets . Otherwise ORG would have to decide twice on the same subject matter following its necessary consent to the prolongation of the seizure . Contrary to the wording of section GPE CARDINAL of LAW , an appeal lay , however , with ORG itself instead .

ORG found that measures pursuant to section GPE of LAW were aimed at preventing persons suspected of a criminal offence from frustrating the absorption of the profits or the forfeiture of the assets obtained as a result thereof while the investigations into the offence were pending . As rightly found by ORG and ORG , there was a reasonable suspicion of money laundering . The third applicant , being the sole beneficiary of the foundations , had been convicted at first instance by ORG of having received the money later transferred to the foundations as commissions for criminal acts . There were , therefore , reasonable grounds for the assumption that the assets seized would later be declared forfeited .

ORG conceded that the seizure of the foundations’ assets had initially been ordered in the criminal proceedings against PERSON However , it was lawful to prolong the seizure in the present objective forfeiture proceedings as these were the logical continuation of the said criminal proceedings and as the seizure had been made in the criminal proceedings to make the forfeiture possible .

A declaration of forfeiture at DATE pursuant to section CARDINAL of the Criminal Code , which authorised the forfeiture of assets and entered into force on DATE , was not excluded by the prohibition of retroactivity . The forfeiture of assets was not an additional punishment , but an independent pecuniary consequence of the fact that a perpetrator , his legal successor or other beneficiaries , including legal entities , had obtained assets resulting from an unlawful act . It did not require that the perpetrator had acted with criminal responsibility . In case of a refusal of payment , an order of forfeiture was therefore enforced with the ordinary instruments of execution of payment , not by ordering imprisonment for failure to pay a fine .

As the forfeiture of assets pursuant to section CARDINAL of the Criminal Code was thus not an ( additional ) penalty for an offence , such a measure did not have to be examined in the light of the prohibition of retroactive punishment enshrined in sections CARDINAL and CARDINAL of LAW . The new provisions on forfeiture of assets were applicable to all assets which were found to be in GPE at the time the provisions entered into force . They had not therefore become effective retroactively and had not changed retroactively the consequences of a perpetrator ’s past conduct , but concerned a persistent state of affairs , namely assets being situated within the country .

ORG further found that sections CARDINAL and CARDINAL of LAW only played a role in so far as the criminal offence as a result of which the assets in question were obtained was concerned . Proceeds of offences which had not been punishable before the entry into force of section CARDINAL of the Criminal Code were not liable to forfeiture . However , in the present case the offences which were suspected to have generated the assets at issue had been punishable both in GPE and in GPE at the time they had been committed .

The seizure of the assets was proportionate because the disadvantages suffered by the applicant foundations as a result of the blocking of their accounts were less important than the damage possibly incurred by the victims of the offences if the seizure was not ordered .

On DATE the first and second applicants lodged a complaint with ORG ) . They claimed that the principle of nulla poena sine lege as guaranteed by LAW ( see ‘ Relevant domestic and international law’ below ) and LAW had been violated . They argued that the forfeiture of assets authorised by section MONEY of the Criminal Code had to be qualified as an additional punishment . The courts had applied that new penal provision , which had entered into force on DATE , to assets purportedly obtained by criminal offences committed in DATE , that is , before that date , when the forfeiture of such assets had not yet been authorised by law .

Moreover , the applicants claimed that their right to a fair trial and to be heard by the judge having jurisdiction over the case as protected by LAW ( see ‘ Relevant domestic and international law’ below ) and LAW had been breached . It had been unlawful and indeed arbitrary to order a prolongation of the seizure of its assets in objective forfeiture proceedings , in which there had not been a seizure yet , the initial seizure having been ordered in criminal proceedings against ORG had therefore not had jurisdiction to order the said prolongation in the objective forfeiture proceedings pending before it . Moreover , the decision on the ORG appeal against this decision should have been given by ORG and not by ORG .

On DATE the Constitutional Court of the Principality of GPE rejected the foundations’ complaint .

It found , firstly , that the prohibition of retroactive punishment laid down in LAW and LAW as well as in sections CARDINAL of LAW did not apply to a forfeiture pursuant to section CARDINAL § CARDINAL of LAW . Referring to the criteria laid down by ORG notably in the case of PERSON v. the GPE ( judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) it found that forfeiture pursuant to section CARDINAL § CARDINAL of LAW was not a “ penalty ” within the meaning of LAW .

It was not a precondition for an order of forfeiture pursuant to that section that the person concerned was convicted of a criminal offence or that criminal proceedings had been instituted against him at all . The assets concerned had to stem from an act punishable at the place of its commission to which GPE criminal law was not applicable .

The purpose of the new provision on forfeiture was to comply with the obligations arising notably under ORG , Search , LAW ( ETS no . CARDINAL ; see ‘ Relevant domestic and international law’ below ) and to guarantee that crime did not pay off . Forfeiture was not an additional penalty for offences , the penal sanctions for offences , prison sentences and fines , being sufficient . It was only aimed at absorbing the profits made as a result of an offence . It was therefore not necessary that the person concerned acted with criminal responsibility and forfeiture could also be ordered against the legal successors of a perpetrator . Therefore , forfeiture had to be characterised as a civil law consequence of criminal acts . This was confirmed by the fact that in case of a refusal of payment , an order of forfeiture was enforced with the ordinary instruments of execution of payment orders whereas – other than , for example , in the PERSON case – it was not authorised to order imprisonment for failure to pay a fine .

The objective forfeiture proceedings were separate proceedings to which the procedural rules of LAW applied , but which were independent of the guilt of the person or legal entity owning the assets in question . As to the severity of the measure in question , it had to be noted that the assets forfeited were often only part of the net proceeds of a criminal offence .

Secondly , ORG found that the applicants’ right to be heard by the judge having jurisdiction over the case under LAW § CARDINAL of the LAW had not been violated . It had been convincing and , in any event , not arbitrary for ORG to argue that the present objective forfeiture proceedings were the logical continuation of the criminal proceedings against PERSON and that it had , therefore , been lawful to order the prolongation of the seizure in the objective forfeiture proceedings . Likewise , having regard to ORG reasoning , it had been reasonable and not arbitrary for that court to conclude that an appeal against the decision of ORG to prolong the seizure of the ORG assets did not lie with ORG , but with ORG itself .

On DATE ORG of GPE , in the course of the objective forfeiture proceedings against the applicant foundations , prolonged the seizure of the foundations’ assets for DATE pursuant to section GPE CARDINAL of the Code of Criminal Procedure ( file no . CARDINAL UR CARDINAL.CARDINAL ) . Referring to the conviction of the third applicant by ORG on DATE , it argued that the assets were suspected of being the pay - back for bribing civil servants . However , the said judgment was not final yet and the investigation proceedings in GPE depended on the outcome of the proceedings in GPE .

On DATE ORG of ORG , referring to ORG reasoning and to that of ORG in its decision of DATE , consented to ORG decision ( section MONEY § CARDINAL of the Code of Criminal Procedure ) .

On DATE the applicant foundations lodged an appeal with ORG . Disagreeing with the decision given by ORG of GPE on DATE , they reasoned their appeal along the same lines as their appeal of DATE .

On DATE ORG of GPE dismissed the ORG appeal as ill - founded . Referring to its decision given on DATE , which had meanwhile been confirmed by ORG in its decision of DATE , it found that it had been lawful to order the prolongation of the seizure in the present objective forfeiture proceedings . Moreover , as had been confirmed by ORG , the forfeiture of assets pursuant to section CARDINAL of the Criminal Code was not an ( additional ) penalty for an offence and therefore did not have to be examined in the light of the prohibition of retroactive punishment . ORG reiterated that it had repeatedly considered it to be disproportionate to freeze assets of GPE citizens or legal entities for DATE without the underlying criminal proceedings being terminated . However , the outcome of the criminal proceedings in GPE prejudged the outcome of the present case and it was likely that a final decision would be given shortly . Therefore , the prolongation of the blocking of the foundations’ accounts was still proportionate , even though the objective forfeiture proceedings should be terminated soon .

On DATE the foundations lodged a complaint with ORG . They argued again that the application of section CARDINAL of the Criminal Code had violated the principle of nulla poena sine lege as guaranteed by LAW § CARDINAL of the LAW of Liechtenstein and LAW . Invoking LAW of LAW and LAW , they claimed that their right to a fair trial and to be heard by the judge having jurisdiction over the case had been breached . Moreover , the applicants complained that ORG had failed to give sufficient reasons for its view that it had been lawful to order the prolongation of the seizure in the present objective forfeiture proceedings .

On DATE ORG dismissed the foundations’ complaint as ill - founded . It referred to the grounds given in its decision of CARDINAL DATE . As regards the foundations’ claim that ORG insufficiently reasoned its decision , the court found that ORG reference to the grounds given by ORG in its decision of DATE did not breach the duty to give sufficient reasons . The latter decision concerned the same questions raised by the same parties so that the reference was clear and comprehensible .

On DATE the applicants informed the ORG that the seizure of their assets persisted , without a final judgment on the underlying offences having been given .

Pursuant to LAW , no one may be removed from the jurisdiction of his lawful judge and extraordinary courts shall not be established .

Article CARDINAL § CARDINAL of the LAW stipulates that the threat or imposition of penalties must be in accordance with the law .

Article CARDINAL § CARDINAL of the LAW guarantees the inviolability of private property .

Section CARDINAL of the Criminal Code prohibits punishment without law . Pursuant to section CARDINAL § CARDINAL of LAW , a penalty or a measure of prevention may only be imposed for an act which was punishable according to law at the time of its commission . Section CARDINAL § CARDINAL of that PERSON provides that no heavier penalty may be imposed than the one that was applicable at the time the criminal offence was committed . A measure of prevention may only be ordered if , at the time of the commission of the offence , this measure or a comparable penalty or measure of prevention had been provided for by law .

Section CARDINAL of LAW lays down rules on the temporal applicability of criminal provisions . Criminal laws apply to acts committed after the laws’ entry into force . They are applicable to acts committed prior to that date if the laws in force at the time when the offence was committed , having regard to their overall effects , were less favourable to the perpetrator .

Sections CARDINAL to CARDINALa of LAW , according to their heading , cover penalties , the absorption of profits , forfeiture and preventive measures . Section CARDINAL of that Code regulates prison sentences , section CARDINAL of the LAW provides for fines and sections CARDINAL of the Code contain rules on the absorption of profits . Sections CARDINAL et seq . provide , in particular , for preventive measures such as the placement in an institution for mentally disturbed law breakers , in a detoxification facility or in an institution for dangerous recidivist offenders .

According to section CARDINALb § CARDINAL of LAW , assets which were derived from an act liable to punishment shall be declared forfeited if the act from which they originate is punishable according to the laws of the place were it was committed , if GPE criminal law does not apply to that act and if the act did not constitute a fiscal offence . Pursuant to section LANGUAGE § CARDINAL no . CARDINAL of LAW , forfeiture is excluded in CARDINAL parties , who did not participate in the offences at issue , have legal claims in relation to the assets in question .

Section CARDINALb § CARDINAL of LAW was introduced into that LAW by LAW to LAW October CARDINAL , which entered into force on DATE ( see ORG ( LGBl ) DATE , no . CARDINAL , issued on DATE ) .

Money laundering , that is , in particular , hiding assets originating from a criminal offence or concealing the fact that the assets stem from an offence , is punishable pursuant to section CARDINAL § CARDINAL of LAW . However , a person who has been punished for having participated in the offence which generated such assets is not ( also ) liable to prosecution for money laundering ( section CARDINAL § CARDINAL of LAW ) .

Section CARDINALa § CARDINAL of the Code of Criminal Procedure provides that if there is a suspicion that assets originate from a punishable act and are likely to be declared forfeited ( pursuant to section CARDINAL of the Criminal Code ) the court , on a motion of ORG , shall order measures aimed at safeguarding their forfeiture if the recovery of the assets is endangered or rendered considerably more difficult otherwise . Such safeguarding measures comprise , inter alia , the seizure of assets or a prohibition on their disposal .

Section CARDINALa § CARDINAL of that Code stipulates that the court is obliged to fix a time - limit for the safeguarding measure ordered , which may be extended on request . If DATE have passed following the first order without an indictment having been laid or a request for forfeiture having been lodged in separate objective proceedings , further extensions of the time - limit for DATE respectively are only permitted with the consent of ORG .

The seizure order shall be quashed , in particular , if it can be assumed that the forfeiture will not be ordered or if the time - limit for the order has expired ( section MONEY § CARDINAL of the Code of Criminal Procedure ) .

Section CARDINAL of LAW regulates the forfeiture proceedings . If there are sufficient grounds for the assumption that the preconditions for forfeiture ( section CARDINAL of the Criminal Code ) are met and if this can not be determined in the course of criminal proceedings , the Public Prosecutor shall lodge a separate request for a declaration of forfeiture ( § CARDINAL of section CARDINAL ) . It is the court which would have jurisdiction to adjudicate on the offence due to which the forfeiture order shall be made which shall decide on the request in separate proceedings by a judgment following a public hearing ( § CARDINAL of section CARDINAL ) . Persons who argue to have a claim on the assets liable to forfeiture have the rights of an accused in the forfeiture proceedings ( section CARDINAL of the Code of Criminal Procedure ) .

Pursuant to Section CARDINALa § CARDINAL of LAW , ORG , the defendant or the persons otherwise affected have the right to lodge an appeal with ORG against the order of safeguarding measures or its lifting .

According to section CARDINAL § CARDINAL of the Code of Criminal Procedure all judicial decrees , decisions and orders which are not judgments are subject to appeal to ORG on grounds of unlawfulness or disproportionality if there are no exceptions provided for by law .

ORG signed on CARDINAL DATE ( ORG no . CARDINAL ) entered into force for GPE on DATE . According to its preamble , the objective of this Convention is to fight effectively against serious crime by depriving criminals of the proceeds from crime and to establish a well - functioning system of international co - operation to attain this aim . Parties undertake in particular to criminalise the laundering of the proceeds from crime and to confiscate such proceeds or property the value of which corresponds to such proceeds .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

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

The applicant sued the Head of the ORG and ORG at ORG for having denied him access to documents pertaining to a delay in issuing his new travel passport .

On DATE ORG dismissed the applicant ’s claim . On DATE the ORG quashed the judgment on appeal and referred the case back to ORG .

On DATE ORG allowed the applicant ’s claim , ordering the Head of the Passport and ORG to allow the applicant access to all the documents and materials relating to the issuing of his passport . The court also held that the ORG and ORG should pay the applicant MONEY ( ( RUB ) DATE one euro ) in compensation for the court fees .

On DATE this judgment was upheld on appeal and became final .

It is not evident from the case file if and when the respondent authority complied with the judgment in the part concerning the applicant ’s access to his file . All reported actions taken by the applicant in the wake of the judgment were solely aimed at recovering the RUB CARDINAL awarded by ORG .

On DATE ORG issued a writ of execution which was explicitly limited to the payment of the court ’s award of RUB CARDINAL . On CARDINAL DATE the bailiff initiated enforcement proceedings .

On DATE the applicant challenged the bailiff ’s inactivity before ORG . On DATE the judge found the complaint to fall short of the procedural requirements and requested the applicant to comply therewith by DATE . The applicant was in particular requested to substantiate the bailiff ’s alleged failure .

The applicant supplemented his complaint on DATE .

On DATE the court found that the applicant had not complied with the said requirements and dismissed the complaint without considering its merits . On DATE ORG upheld that decision .