Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicants , whose particulars appear in the Appendix , are CARDINAL NORP nationals . ORG of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

The applicants’ family owned a plot of land in the ORG area . It was originally classified as a field . In DATE the ORG entrusted various public entities with the administration and use of the land , of which the members of the applicants’ family formally remained the owners . The applicants each inherited a share in the plot .

Under a contract of DATE the right of temporary use of the land was eventually conferred on GPE of Fruiterers and Gardeners for a period of DATE .

The area where the plot is located was turned into a “ garden community ” consisting of individual gardens which were put at the disposal of third parties , members of GPE ( “ the gardeners ” ) . The plot was reclassified as a garden and it has since been used as such a garden .

In DATE the applicants commenced asserting their rights in respect of the plot . The relevant action and proceedings are described below .

On DATE the ORG granted the applicants’ action of DATE and ordered the gardeners to vacate land which was outside the limits of the garden community .

The applicants appealed only against the decision relating to the costs of the proceedings . CARDINAL of them , PERSON , also complained that no compensation had been paid for the use of their land in the garden allotment .

On DATE ORG ordered the first - instance court to review its decision on the costs of the proceedings . The claim for compensation was outside the purview of the court of appeal as the plaintiff had not submitted it in the proceedings at first instance . The remaining part of ORG judgment became final .

As from DATE the applicants repeatedly and unsuccessfully attempted to conclude a lease contract with the gardeners .

In a letter of CARDINAL DATE one of the applicants stated that she considered CARDINAL to CARDINAL NORP korunas ( SKK ) per square metre and year to be a reasonable sum .

On DATE the applicants lodged an action with the ORG . They claimed payment of rent in respect of the land used by the gardeners for the period DATE and DATE . They relied on section CARDINAL ) of LAW DATE , which provides that if no other arrangement has been made between an owner and an occupant of land in a garden community , their relationship would become ex lege that of the parties to a lease . The applicants also claimed that the defendants should be ordered to vacate the land .

In the subsequent proceedings ORG had regard to CARDINAL expert opinions . It noted that under the law then in force ( Regulation CARDINAL/CARDINAL which governed valuation of property for administrative purposes ) the maximum rent for similar land was CARDINAL NORP korunas ( SKK ) per square metre .

At a hearing held on DATE the applicants stated that they claimed SKK CARDINAL.CARDINAL as yearly rent for QUANTITY of their land .

In its judgment of DATE it held that the amount claimed by the applicants , namely SKK QUANTITY plus default interest , was appropriate . It therefore granted their action . The defendant appealed .

The case was subsequently remitted at first instance .

On DATE a different expert concluded , with reference to Regulation CARDINAL/CARDINAL and LAW DATE , that the rental value of the applicants’ land had been SKK CARDINAL per square metre DATE .

On DATE the applicants challenged that valuation . With reference to the relevant regulation they alleged that in the area concerned the rent was fixed at SKK CARDINAL per square metre .

On DATE ORG ordered a fourth expert opinion on the rental value of the applicants’ land DATE and DATE .

The proceedings are pending .

On DATE the gardeners requested under section CARDINAL(CARDINAL ) of Law no . CARDINAL on the use of plots of land in allotment gardens and arrangements as regards their ownership ( PERSON o užívaní pozemkov v zriadených záhradkových osadách a vyporiadaní vlastníctva k nim – “ PERSON no . CARDINAL ” ) that the tenancy and ownership relations in respect of their gardens be settled by ORG in a land consolidation procedure under section DATE ) of that Act .

On DATE the district office made a formal announcement to the applicants under section CARDINAL ) of PERSON no . CARDINAL of the commencement of the procedure under section DATE ) of the LAW . The announcement contained a register of the original ownership and a surveyor ’s plan concerning the current state of the land ( “ the preliminary inventory ” ) . The applicants had an option to buy the constructions and vegetation situated on their plot .

On DATE the district office approved the preliminary inventory under section ORG ) of LAW , observing that no objections to it had been raised .

On DATE the applicants challenged the decision of CARDINAL November DATE by an administrative appeal . They opposed the consolidation procedure as such ; claimed that the gardeners’ use of their land was illegitimate ; challenged inconsistencies in the preliminary inventory ; and invoked the protection of their property rights under LAW .

On DATE , following a hearing , ORG quashed the decision of CARDINAL DATE and remitted the matter to the district office for re - consideration . It held that ORG had failed to examine adequately whether the GPE request of DATE complied with the applicable procedural requirements and to determine objections which the applicants had raised in various forms in respect of the consolidation procedure and the preliminary inventory .

On DATE the district office decided to stay the proceedings under PERSON no . CARDINAL . The determination of the validity of the contract of DATE , which had been challenged by the land owners , was prejudicial to the consolidation procedure . PERSON , who had raised that objection , was invited to institute separate proceedings before a court within DATE with a view to having that issue determined .

On DATE the district office decided to resume the proceedings as it had been established that PERSON had not complied with the above instruction in that she had failed to challenge the contract of DATE before a civil court . There was thus no obstacle to the land consolidation . On DATE the district office again approved the preliminary inventory .

On DATE , on PERSON appeal , the regional office upheld the decision of QUANTITY DATE .

On DATE the district office invited the applicants under section CARDINAL(CARDINAL ) of Law no . CARDINAL to state whether they preferred to be compensated by being granted a substitute plot or paid an amount of money in lieu of their land . As to the substitute plot , a specific proposal was made .

On DATE the district office ruled that CARDINAL of the applicants were to be compensated financially as they had made no claim for substitute land .

On DATE the regional office ruled that the remaining applicant , PERSON , would also be compensated financially on the ground that she had rejected the proposed plot . The decision was upheld on her appeal on DATE by ORG . Its decision stated , inter alia , that the plaintiff challenged the validity of the legal act of DATE which placed the land at the gardeners’ disposal and that it was open to her to bring a civil action with a view to having that issue determined .

On DATE the district office approved a project of consolidation of the land in question . On DATE it ordered its implementation . The project presupposed that the gardeners would become the owners of their gardens and that the original owners of the land concerned would become the owners of specific substitute land or , as in the case of the applicants , would be financially compensated . The relevant documents indicate that the compensation payable to the applicants amounted to SKK QUANTITY per square metre of their land . On DATE ORG upheld that decision .

On DATE and DATE respectively the district office and , on the ORG appeal , the regional office , approved the implementation of the project . The decision became final and binding on DATE . By virtue of that decision the gardeners became the owners of their gardens . In DATE their ownership title was recorded in ORG .

PERSON request for the reopening of the proceedings was refused on DATE and DATE by the regional office and , on her appeal , by ORG on the ground that she had not submitted new relevant information within the meaning of the applicable procedural rules . The administrative authorities had regard to the applicant ’s argument that the contract of DATE allowing the gardeners to use the land was void . They noted that the plaintiff , despite several requests , had not been shown to have challenged the validity of that contract before a court .

On DATE ORG dismissed the applicants’ action challenging the lawfulness of the administrative authorities’ order of DATE for implementation of the consolidation project under PERSON no . CARDINAL . The judgment stated , inter alia , that in the context of the proceedings complained of , that is concerning the order for implementation of the consolidation project , the administrative authorities could no longer examine the argument about alleged flaws in the DATE contract under which the land had been put at the gardeners’ disposal . That issue fell to be determined by a civil court in a separate set of proceedings . ORG found no flaws rendering unlawful the proceedings complained of and the decisions taken .

The applicants appealed and argued that the regional court had disregarded their arguments about flaws in the DATE contract .

On DATE ORG upheld the first - instance judgment .

ORG judgment was served on the advocate representing the applicants on DATE . He sent it to the applicants on DATE .

On DATE PERSON lodged a complaint with ORG . She complained under LAW No . CARDINAL that in proceedings under PERSON no . CARDINAL she had been deprived of her property without appropriate compensation . She referred to the above administrative decisions of DATE and CARDINAL DATE and to the judgments of the regional court and ORG of DATE and DATE respectively . She expressly stated that she challenged PERSON no . CARDINAL and maintained that there was no public interest in a transfer of her land to the gardeners under its provisions .

On DATE ORG rejected the complaint on the ground that the applicant had not lodged it within the DATE time - limit laid down in LAW .

In an opinion prepared at the ORG request and dated DATE an expert in valuation of real estates concluded that the market value of the applicants’ land , as on DATE , was MONEY ( ORG ) per square metre . The opinion stated that the land was situated within a municipality belonging to the town of ORG , which was the seat of regional authorities and institutions . It was within CARDINAL minutes’ drive of the town centre and the locality was a popular residential area for the town ’s inhabitants .

At the Government ’s request ORG in GPE determined the market value of the property in an opinion of DATE . It concluded that in DATE , when the land had been transferred to the gardeners , its general value had been EUR QUANTITY .

The relevant domestic law and practice , as well as the general background to consolidation of land used by garden communities , are set out in GPE obec PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE and DATE , ORG DATE ... ( extracts ) ) .

In addition , the following legal provisions and practice are relevant in the present case .

LAW CARDINAL of the LAW provides that constitutional laws , laws and other generally binding legal regulations are to be interpreted and applied in conformity with LAW .

Pursuant to Article LAW , international treaties on human rights and fundamental freedoms which GPE has ratified and were promulgated in the manner laid down by a law prior to the entry into LAW on DATE form a part of its legal order and have precedence over laws where they provide for a broader array of constitutional rights and freedoms .

In judgment I. ÚS CARDINAL delivered on DATE ORG , with reference to LAW and CARDINALc § CARDINAL of the LAW , held that the LAW and the case - law of its bodies represent binding guidelines for national authorities on interpretation and implementation of legal provisions bearing on fundamental rights and freedoms . The LAW and the case - law of its organs thus set a framework which the national authorities could not overstep when dealing with a case . The same view was expressed in its judgment ORG CARDINAL/CARDINAL of DATE .

On DATE the ORG delivered a judgment in proceedings III . ÚS CARDINAL/CARDINAL . The case concerned alleged flaws in proceedings on implementation of a consolidation project under PERSON no . CARDINAL . In particular , the plaintiff complained that by its decision to discontinue the proceedings concerning lawfulness of the administrative authorities’ decisions a court had breached his rights to judicial protection and to own property .

ORG granted the complaint considering that the court should have dealt with the merits of the case . It returned the case to the ordinary court for further proceedings .


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and is currently serving a prison sentence in ORG .

The applicant was detained in FAC from an unspecified date in DATE until DATE , when he was moved to ORG . He stated that the conditions of detention in FAC had been inhuman and degrading .

It appears that the applicant submitted frequent complaints to various institutions against the administration of ORG .

On an unspecified date in DATE he complained to the prosecuting authorities that some of the letters he had sent had been withheld by the administration and had never reached their addressees . Following an inquiry , his complaint was dismissed both by the regional prosecutor on DATE and on appeal on CARDINAL DATE by the prosecutor in appeal proceedings who established that DATE and DATE the applicant had sent CARDINAL letters , which had been duly entered in the prison register and forwarded to their addressees .

On DATE and DATE the director of ORG ordered the confinement of the applicant in an isolation cell for CARDINAL DATE periods following CARDINAL violent incidents between the applicant and another prisoner which had occurred at short intervals . The applicant appealed .

The Levski ORG opened CARDINAL sets of proceedings and on DATE examined the ORG appeals in CARDINAL separate hearings held consecutively . The applicant appeared in person while the prison administration did not send a representative .

At the start of the first hearing the court stated that it had summoned PERSON , a prison guard , as a witness . It noted that PERSON had not appeared , the prison administration having submitted a medical certificate to the effect that he had been admitted to hospital . The applicant requested that another prison guard , PERSON , be questioned but nevertheless agreed that the court should proceed with the examination of the case .

On the merits , the applicant stated that he had been insulted and attacked by an inmate . He denied having insulted the inmate concerned and claimed that he was not responsible for the incident and that the punishment was unjustified .

In a final decision of the same date ORG upheld the order of DATE , stating that the director of the prison had taken into consideration all relevant circumstances and had delivered a reasoned and lawful order . The director had considered the applicant ’s and ORG statements and the report of a prison employee . The court further noted that the written statements of the witnesses corroborated the director ’s conclusions and did not support the applicant ’s account of the events . As to the punishment , it had been determined with due regard to the gravity of the offence and the applicant ’s conduct as a whole .

Then the court proceeded with the second hearing . It noted that the prison guard PERSON , who had been summoned as a witness , was also in hospital . The applicant insisted on the appearance of PERSON and stated that he wanted to call a second witness , Mr F. He also asked to be assigned a court - appointed lawyer and sought an adjournment .

The court dismissed those requests , stating that it was obliged to complete the examination of the applicant ’s appeal within DATE of its being lodged and that the absence of a lawyer was not a reason for adjourning the hearing .

On the merits , the applicant explained that the incident had been similar to the first one and that he had been insulted and attacked by the same inmate .

In a final decision of the same date ORG upheld the order of DATE . It found that on DATE a conflict had arisen between the applicant and another prisoner which had developed into a fight . That had necessitated the intervention of the guard on duty . The director of the prison had taken into consideration all relevant circumstances and had delivered a reasoned and lawful order . He had considered the applicant ’s and ORG statements and the report of a prison employee . The court further noted that the written statements of the witnesses corroborated the director ’s conclusions and did not support the applicant ’s account of the events . As to the punishment , it had been determined with due regard to the gravity of the offence and the applicant ’s conduct as a whole .

On DATE , while the applicant was isolated in a disciplinary cell in connection with the above punishments , his mother sent him a parcel which was not delivered to him . On an unspecified date in DATE the applicant asked why his right to receive parcels had been restricted . The prison administration informed him that no parcel had arrived .

On DATE the applicant complained to the public prosecutor that the prison administration had refused to give him the parcel . He requested that the matter be investigated and the responsible officials punished . He stated that the prison employees often made such mistakes in respect of prisoners . Lastly , he stated that the incident amounted to a criminal offence under LAW , which made it an offence to , inter alia , hide or destroy a package intended for another person .

On DATE the applicant gave a copy of his complaint to a prison employee , who transmitted it to the prison director . Following an internal inquiry , it was established that on DATE a parcel for the applicant had indeed arrived and was sent back to the sender because the applicant was not entitled to receive parcels while in isolation . In relation to the above , the director of ORG considered the applicant ’s statements to the public prosecutor defamatory and on DATE punished him with CARDINAL days’ isolation in a disciplinary cell . He also justified the punishment on grounds of the applicant ’s overall conduct , referring to the punishments imposed on him on CARDINAL and DATE ( see paragraph CARDINAL above ) and the fact that the applicant had frequently sent similar complaints to various institutions . The applicant appealed .

ORG held a hearing on DATE . An employee of the prison submitted that the parcel had been lawfully returned because prisoners were not allowed to receive parcels while punished with solitary confinement . The witness further stated that he had suggested that the applicant be punished because the latter had made insulting and defamatory statements against the prison administration . The witness pointed out that this was the applicant ’s third breach of the disciplinary rules .

The applicant replied that he would not have complained to the public prosecutor had the prison administration informed him about the parcel . He stated that he had not received a reply from the public prosecutor .

In a final decision of the same date ORG upheld the order of DATE . It referred to the statements of the witness and the information contained in the disciplinary file and held that the order was reasoned and lawful and that the conduct of the applicant within DATE had been taken into consideration .

On an unspecified date in DATE the applicant requested ORG at ORG to transfer him to another prison , stating that the administration of ORG had subjected him to harassment . In particular , he referred to the dispute about the parcel and the ensuing punishment ( see paragraphs CARDINAL above ) .

On DATE the Deputy Minister of ORG granted the applicant ’s request and ordered that he be moved to ORG . He noted that the prison authorities had given inaccurate information to the applicant about the parcel and that , therefore , the applicant had acted in good faith in complaining to the public prosecutor . The honesty of his intention was also evident from the fact that he had provided the prison administration with a copy of his complaint . The Deputy Minister further noted that prisoners were entitled to make applications and complaints to public bodies and stressed that the disciplinary liability envisaged in FAC could not be used to restrict that right . Noting that the punishment of CARDINAL DATE had been upheld by the court and had become final , the Deputy Minister considered that the applicant had understandably lost confidence in the administration of ORG and that that risked jeopardising his reform , should he remain in that prison .

Under section CARDINAL(k ) of LAW ( ESA ) of DATE , in force at the relevant time , a prisoner who violated prison regulations or disciplinary rules or failed to fulfil his duties could be punished by , inter alia , confinement in an isolation cell for DATE . During confinement , prisoners could not use the telephone or receive any visits or parcels but were still entitled to TIME DATE exercise in the open air , separated from the other prisoners ( section CARDINALa of the ORG and section CARDINAL of ORG of DATE ) .

Section CARDINAL of ORG of DATE provided that where a prisoner used defamatory or offensive language in his or her submissions or complaints , he or she was liable to disciplinary and criminal punishment . On DATE the ORG of DATE was superseded by the new Enforcement of Sentences and Detention Orders Act ( the “ ORG ” ) . Pursuant to LAW ORG , prisoners shall not be liable to disciplinary punishment because of having made a request or lodged a complaint .

In accordance with sections DATE and CARDINAL of the ORG of DATE , an appeal lay to ORG or the district court against punishment by confinement in an isolation cell . The former was obliged to examine the case within DATE , and the latter within DATE . Execution of the punishment was not suspended pending the outcome of the appeal , unless the relevant appeal body decided otherwise . In proceedings before the district court the public was excluded and the absence of the prisoner ’s lawyer was not an obstacle to the examination of the case . The court was obliged to examine all circumstances relevant to the lawfulness of the punishment . Its decision was final .

Pursuant to the ORG of DATE and the relevant Implementing Regulation , ORG at ORG was responsible for managing and supervising prisons . Its General Director could annul the decisions of prison directors .

Under LAW of DATE and the ORG of DATE , the public prosecutor was competent to supervise prisons and the enforcement of sentences . His powers included examining complaints from prisoners , giving mandatory instructions to the prison administration for correcting irregularities , and suspending unlawful acts which were amenable to appeal .

Disputes between prisoners and the prison administration concerning the enjoyment of rights such as visiting rights or the rights to receive correspondence or parcels were not amenable to appeal before the court .

Section CARDINAL of the DATE State and ORG ( “ the ORG ” ) , as amended in DATE , provides as follows :

“ The ORG and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions , actions or omissions by their organs and officials committed in the course of or in connection with the performance of administrative action . ”

The relevant extracts from the Recommendation on ORG read as follows :

“ CARDINAL.CARDINAL Prisoners , individually or as a group , shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority .

CARDINAL If mediation seems appropriate this should be tried first .

CARDINAL If a request is denied or a complaint is rejected , reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority .

CARDINAL Prisoners shall not be punished because of having made a request or lodged a complaint .

CARDINAL.CARDINAL Prisoners are entitled to seek legal advice about complaints and appeals procedures and to legal assistance when the interests of justice require . ”


Violation of Art. 5-3 with regard to the right to be brought promptly before a judge or other officer;Violation of Art. 5-3 with regard to the length of pre-trial detention;Violation of Art. 5-4;Violation of Art. 8 with regard to correspondence;Violation of Art. 8 with regard to family life;No separate issue under Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE the PERSON - Stare Miasto District Prosecutor ( Prokurator Rejonowy ) charged the applicant with fraud committed together with several accomplices and detained him on remand for DATE in view of the reasonable suspicion that he had committed the offence in question and the risk that he might obstruct the proper course of the proceedings .

On DATE the applicant appealed to the FAC ( Sąd Rejonowy ) against the order for his detention . On DATE he lodged a pleading supplementing his appeal . In that pleading , he submitted that his detention had been imposed by a prosecutor , a party to the proceedings , whereas under the Convention detention had to be ordered either by a judge or by another officer exercising judicial power .

On DATE a single judge , sitting as the FAC , dismissed the appeal , finding that the applicant 's detention had an adequate legal basis . The applicant did not participate in the court session , whereas the PERSON - Stare Miasto District Prosecutor did .

On DATE and DATE the applicant asked the FAC to appoint a defence lawyer for him . That application was granted on DATE .

On DATE the applicant asked the PERSON - Stare Miasto District Prosecutor to release him . The application was dismissed on CARDINAL DATE by the prosecutor at first instance and on DATE on appeal . The authorities held that there was a reasonable suspicion that the applicant had committed the offence with which he had been charged . They also considered that holding him in detention was necessary to secure the proper conduct of the proceedings .

On DATE the applicant made a further application for release . He complained about the prison conditions and maintained that his continued detention had severely affected his health . The prosecution asked medical experts to examine the applicant . The doctors made their report on DATE . They concluded that the applicant could receive adequate medical treatment in prison .

Basing themselves on that report , the authorities refused to release the applicant . The relevant decisions were made on DATE by the prosecutor at first instance and on DATE on appeal . The prosecutors , referring to the experts ' report , held that the applicant 's health did not militate decisively against his being kept in detention .

In the meantime , ORG ( Prokurator Wojewódzki ) took over the investigation from the PERSON - Stare Miasto District Prosecutor .

On DATE the applicant asked ORG to release him in view of his bad health . He stressed that he was suffering from diabetes , high blood pressure and arteriosclerosis . He maintained that he did not receive proper medical treatment and diet in prison . The application was dismissed on DATE by the prosecutor at first instance and on DATE on appeal . The main ground on which the authorities relied was that , according to a medical report obtained on DATE , the applicant 's general condition was not an obstacle to keeping him in detention .

On DATE , on an application made by ORG , the FAC prolonged the applicant 's detention until DATE . The applicant appealed on CARDINAL DATE . He argued that he had never been brought before a judge at any stage of the proceedings relating to the lawfulness of his detention . On DATE ORG ( Sąd Wojewódzki ) upheld the first - instance decision . ORG participated in the court session but neither the applicant nor his lawyer did .

On DATE the applicant asked the FAC to release him under police supervision . The matter was referred to ORG because at the investigation stage only a prosecutor could deal with an application for release ( see also paragraph CARDINAL ) . That application was rejected on DATE at first instance and on DATE on appeal . The prosecution considered that there was a reasonable suspicion that the applicant had committed the offence with which he had been charged . They also pointed out that there were no particular circumstances militating in favour of his release , as defined in LAW .

On DATE and DATE the applicant again asked the FAC to release him under police supervision . Those applications , after having been referred to ORG , were dismissed by that prosecutor on DATE and , on appeal , on DATE . The authorities considered that the original grounds given for the applicant 's detention were still valid .

On DATE , on an application by ORG , the FAC prolonged the applicant 's detention until DATE .

On DATE and CARDINAL DATE the applicant made further applications for release under police supervision to ORG , claiming a breach of LAW in that he was neither tried within a reasonable time nor released pending trial .

On DATE the court held a session and , after having heard the submissions of ORG , dismissed the applications in view of the reasonable suspicion that the applicant had committed the offence with which he had been charged and the need to ensure the proper conduct of the proceedings .

NORP The applicant appealed on DATE . He submitted that the proceedings concerning his applications for release were not adversarial because he could not take part in any court session at which those applications were examined , whereas the prosecution could put forward any arguments they wished in his absence . On DATE ORG ( FAC ) , after having heard the prosecutor 's submissions , upheld the first - instance decision and the reasons given therefor .

Meanwhile , on DATE , the FAC had considered the applicant 's request for release , in which he had alleged a breach of LAW in that after having been arrested he had not been brought before a judge . The court dismissed the request and held , inter alia , that the fact that the detention had been imposed by the prosecutor , i.e. a party to the proceedings , was not a factor that would justify releasing him . On DATE , on an appeal filed by the applicant , the ORG quashed the decision of CARDINAL DATE and held that , in accordance with LAW DATE on LAW to LAW ( see also “ Relevant domestic law and practice ” below ) , only a regional court was competent to deal with the applicant 's application for release .

ORG further examined that application and rejected it on the ground of the reasonable suspicion that the applicant had committed the offence with which he had been charged . It also considered that the need to ensure the proper course of the proceedings and the likelihood of a severe sentence to be imposed on the applicant justified his being held in custody . ORG participated in the court session but neither the applicant nor his lawyer did .

The applicant appealed . On DATE ORG held a session and , after having heard the prosecutor 's opinion , upheld the first - instance decision and the reasons given therefor .

In the meantime , on DATE , ORG had lodged a bill of indictment with the FAC . The applicant was indicted together with CARDINAL other persons on charges of aggravated fraud , appropriation of public property , receiving stolen goods , making a false declaration , and forgery . The case - file comprised CARDINAL volumes .

The trial was listed for CARDINAL and DATE . Meanwhile , on CARDINAL DATE the court appointed a new lawyer for the applicant .

On DATE the applicant asked ORG to release him . He maintained that his detention had lasted an excessively long time and , what was more , he had previously been detained in other criminal proceedings for DATE . He had accordingly spent in custody in DATE . That , he stressed , had in reality amounted to serving a prison sentence . He relied on LAW .

On DATE his application was dismissed at first instance and on DATE on appeal . The courts considered that the applicant should still be kept in custody in view of the severity of the sentence which might be imposed and the need to ensure the proper conduct of the proceedings .

On DATE the court postponed the trial to CARDINAL DATE because CARDINAL of the applicant 's co - defendants was ill .

On DATE and , subsequently , on CARDINAL , DATE and DATE the applicant made complaints about the conduct of his officially - appointed counsel and asked the trial court to appoint a new lawyer for him .

On DATE the applicant again asked the court to release him under police supervision . On DATE the application was dismissed in view of the need to ensure the proper conduct of the trial and the severity of the sentence that might be imposed on him .

On DATE the applicant appealed , submitting that neither he nor his lawyer had been informed of , or summoned to , the court 's session at which his application for release had been examined and that the relevant procedure did not comply with the requirements of LAW . On DATE he asked ORG to allow him to attend the session at which that court would deal with his appeal so that he could put forward his arguments .

On DATE the FAC refused to proceed with the appeal since , under the recently amended provisions of LAW , no appeal lay in law against a court decision on an application for release .

On DATE the court postponed the trial to DATE because a certain GPE , CARDINAL of the applicant 's co - defendants had failed to appear . The court severed the charges against GPE

On DATE and on CARDINAL , DATE , DATE and DATE , and on CARDINAL , DATE and DATE DATE the applicant made further unsuccessful applications for release under police supervision to the Wrocław - Śródmieście District Court . The applications were dismissed on DATE and on CARDINAL , DATE , DATE and DATE , and on DATE , DATE and DATE respectively . The court considered that the applicant should still be kept in custody in view of the need to secure the proper conduct of the trial and the severity of the sentence which might be imposed , a sentence that ranged from DATE imprisonment .

On DATE the trial was to start but the applicant made yet another complaint about the conduct of his officially - appointed counsel and the court adjourned the hearing , finding it necessary to appoint a new defence lawyer for him .

On DATE the court adjourned the next hearing since E.Cz . , CARDINAL of the applicant 's co - defendants , had failed to appear . The court ordered that E.Cz . would be brought by the police to the next hearing , which was listed for DATE . Yet on the latter date the trial was postponed because the presiding judge was ill .

The trial began on DATE . On DATE the court heard evidence from the applicant .

At the hearing of DATE the applicant again asked the court to release him under police supervision . The court rejected his application . It found that keeping him in custody was necessary to secure the proper conduct of the trial . The court also stressed that the severity of the sentence that might be imposed on the applicant was an important factor that argued against releasing him .

Subsequently and throughout the trial , the applicant made numerous – but likewise unsuccessful – applications for release . Between CARDINAL May and DATE he made CARDINAL such applications and appealed against each refusal . The courts reiterated the grounds they had previously given for his continued detention .

NORP The applicant also repeatedly challenged the impartiality of the trial judges and complained about the conduct of the registry clerk who was responsible for the record of the trial . From CARDINAL May to DATE he made CARDINAL applications for the judges to be disqualified from dealing with his case .

After the hearing that was held DATE ( see paragraph CARDINAL above ) , the next one was listed for DATE . On DATE , the court heard evidence from the applicant 's wife .

Subsequently , the court made an application under LAW of LAW ( see paragraphs CARDINAL below ) to ORG ( Sąd Najwyższy ) , asking it to prolong the applicant 's and NORP . PERSON 's detention for DATE .

In the meantime , hearings set for DATE and DATE , had been cancelled ; the former because PERSON , CARDINAL of the applicant 's co - defendants , had failed to appear , the latter because ORG and another co - defendant , E.Cz . had not been present .

On DATE and DATE a massive flood - wave inundated the LOC - West of GPE , severely affecting ORG . A considerable part of the city was washed away or destroyed .

On DATE the applicant complained to the FAC that his health was deteriorating very rapidly and that he was seriously affected by the harsh prison conditions resulting from the flood in PERSON . He asked for release .

On DATE the applicant made a petition to the President of ORG , the President of FAC and the FAC . He complained that on CARDINAL and DATE a flood - wave had inundated the prison building up to the third floor . The light , electricity and sewage systems had been destroyed . There had been no drinking water , food or washing facilities . He and his fellow inmates were , in his words , kept like animals in unventilated , overcrowded and stinking cells . He asserted that an official tolerance for that situation amounted to inhuman and degrading treatment .

Subsequent hearings , which were to be held on DATE , did not take place because , on the first date , the defence counsel for PERSON and NORP . S had not been present and , on the second , PERSON 's counsel had not appeared and the police had not brought E.Cz . from prison .

The next hearing , scheduled for DATE , was postponed to CARDINAL DATE because E.Cz . failed to appear .

DATE . On DATE the hearing was nevertheless adjourned since E.Cz . and CARDINAL of the judges sitting in the trial chamber were absent . The presiding judge ordered , however , that E.Cz . , on account of his repeated failure to comply with the court order , be searched for by a “ wanted ” notice and detained pending trial .

On DATE the court made the second application under LAW to ORG , asking it to prolong the applicant 's and ORG . PERSON 's detention for a further period of DATE . In the reasoning , the court reiterated the grounds previously given for the applicant 's detention . It further referred to the risk that he might induce witnesses to give false testimonies or to obstruct the trial by other unlawful means , and the likelihood of a heavy penalty being imposed on him . In that connection , the court stated that the applicant , when giving evidence , had refused to reveal names of certain clients of his company and stated that he would not do so unless he had considered it to be pertinent . The court next pointed out that the applicant 's detention should continue because there were no special circumstances justifying his release , as defined in LAW . It also stressed that it still needed to obtain voluminous evidence . In its opinion , all those above - mentioned obstacles made it impossible for it to give judgment within the terms referred to in LAW of LAW .

On DATE the applicant applied to the President of ORG , asking that he be brought to the session concerning the prolongation of his detention beyond the statutory time - limit , so that he could present his arguments . He relied on LAW and a number of constitutional provisions , notably those stipulating that self - executing provisions of an international treaty took priority over domestic law . He also complained that ORG had not served a copy of the application of DATE on him and that , in consequence , he could not contest effectively the grounds for the prolongation his detention given by that court .

On DATE the applicant received a copy of that application . On DATE he prepared a statement addressed to the President of ORG and once again asked that he be brought from prison to the session concerning the prolongation of his detention . He also complained about the conduct of the presiding judge . He stressed that the judge was not fair in considering that he should be held in custody inasmuch as the trial had to be postponed only because of his released co - defendants ' repeated failure to appear before the court . In that context , the applicant pointed out that the court would have avoided the delays caused by the conduct of those co - defendants if it had severed promptly the charges against them .

On DATE ORG cancelled a hearing as ORG had not yet examined the application of DATE and had not returned the case - file .

On DATE ORG held a session at which it dealt with that application . It prolonged the applicant 's detention until DATE .

At the beginning of the session ORG considered the applicant 's motion in which he asked it to be brought before it and allowed to present his arguments . ORG ( Prokurator PERSON ) was summoned to , and took part in , the session . The applicant 's representative was not summoned . After having heard the Prosecutor 's arguments ( who opposed the motion ) , ORG rejected the applicant 's request .

Referring to the grounds for the extension of the applicant 's detention beyond the statutory time - limit , ORG held that the circumstances adduced by ORG showed that it was likely that he would induce the witnesses to give false testimonies or otherwise obstruct the trial . It further found that , given the fact that the case was of a particular complexity and that the trial court had to obtain various evidence , the applicant should still be held in custody in order to secure the proper conduct of the trial . Lastly , ORG pointed out that despite the factors that had to date contributed to the prolongation of the trial , ORG should nevertheless accelerate the proceedings .

The trial was to restart on DATE but it was postponed to CARDINAL DATE because the police had not brought E.Cz . from prison and PERSON 's counsel had not appeared before the court .

On DATE ORG dismissed the applicant 's application for his detention to be lifted and replaced by another preventive measure . The court considered that the applicant should be held in custody because a severe penalty might be imposed on him . It stressed that the applicable sentence ranged from DATE imprisonment . It further considered that the fact that the applicant had refused to reveal the identity of some of his company 's clients showed that , had he been released , he would have induced witnesses to give false testimonies or otherwise obstructed the proper course of the trial .

On DATE the court cancelled a hearing because the police had not brought the applicant and E.Cz . from prison . On DATE the applicant made an application for release , asking the court to vary the preventive measure imposed on him . He maintained that his prolonged detention was putting a severe strain on himself and on his family .

The applicant made a further , similar application on DATE , stating that he “ would be very grateful if [ he ] could obtain an explanation as to what for and for whom [ he ] was needed to be prison ” . He submitted CARDINAL further applications in DATE and CARDINAL in DATE .

The court dismissed those applications on DATE and DATE , and on CARDINAL and DATE , respectively . The reasons for those decisions were in essence identical to those given for the decision of CARDINAL DATE ( see paragraph CARDINAL above ) .

On DATE the court cancelled a hearing . On DATE it decided to conduct the trial again from the beginning and to rehear all evidence that had so far been obtained . The presiding judge read out the records of the evidence heard from the applicant on DATE .

On DATE the applicant was released pending trial .

On DATE the ORG gave judgment . It convicted the applicant as charged and sentenced him to DATE imprisonment and a fine .

During his detention , the applicant received many letters , including those from his lawyers , without envelopes .

From DATE to CARDINAL DATE the applicant sent CARDINAL letters to the Commission , of which CARDINAL were opened and stamped “ censored ” ( ocenzurowano ) by the NORP authorities before being sent on .

On DATE the Secretariat of the Commission sent to the applicant a letter together with an application form and the relevant enclosures . The official stamps made by the authorities indicated that the letter was delivered to ORG on DATE , sent to ORG on DATE , and opened and censored by that prosecutor on DATE .

On DATE the applicant sent a letter to ORG ( PERSON ) . On DATE the authorities opened the letter and stamped it “ censored ” .

In his letter of DATE the applicant complained to the Commission that he would not be able to submit the application form within DATE referred to in the ORG 's letter of DATE because the authorities had opened and censored that letter and its delivery had been delayed . He also complained that the authorities of ORG prison had refused him any assistance in preparing copies of the relevant documents and that , for that reason , he could not submit the application within the prescribed time - limit . However , he filed the form on DATE . It was posted , with enclosures , on DATE . It was received at the ORG 's secretariat on DATE .

On DATE ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment sent a letter to the applicant . On DATE the authorities opened the letter . The envelope bears the stamp “ censored ” .

On DATE and DATE the applicant sent CARDINAL letters to ORG . The envelopes were cut open . They bear the stamp “ censored ” .

DATE . On DATE the applicant sent a letter to his wife . The authorities opened that letter and put the stamp censored on it .

On DATE and CARDINAL and CARDINAL DATE the applicant submitted to the prison authorities CARDINAL letters addressed to the President of ORG . In the letter of DATE he asked ORG to order that he be brought to the session concerning the examination of the application for his detention to be prolonged ( see paragraph CARDINAL above ) . All the envelopes bear the stamp “ censored ” . The post - mark reveals that the letter of DATE was sent out on DATE and the CARDINAL other letters on DATE .

On DATE and on CARDINAL DATE PERSON law firm received letters from the applicant . The postmark on the envelope of the first letter is unreadable . The second letter was posted on DATE . On both envelopes there were hand - written notes made with a red marker . Those notes read : “ censored ” .

On DATE and CARDINAL DATE the applicant handed in CARDINAL further letters to the President of ORG to the prison authorities . On both envelopes there was a hand - written note that read : “ censored ” . The post - marks show that the letters were sent out on DATE and on DATE , respectively .

On DATE the FAC ordered that the applicant should not be allowed to have any personal contact with his wife in view of the fact that in the meantime she had been charged with fraud in which the applicant had also been involved . That restriction included a prohibition of supervised family visits and of communication by a prison internal phone . Before that date their personal contact had not been restricted .

On DATE the applicant requested ORG to grant his wife a permit to visit him in prison as they had had no personal contact since DATE . The application was dismissed on DATE without any reasons being given .

On DATE the applicant complained to the President of ORG that not only had all his letters to his wife been censored but some of them also intercepted or delayed and that he had not even been allowed to make phone calls to his wife . He submitted that these facts taken together with the absolute prohibition on any personal contact with her had amounted to inhuman treatment .

On DATE the applicant unsuccessfully requested the FAC to stop the censorship of his letters to his wife .

DATE . On DATE the applicant , likewise unsuccessfully , asked the court to allow his wife to visit him in prison .

On DATE he made a similar application , submitting that at the hearing of DATE the court had heard evidence from him and he had explained all the circumstances relating to his the charges laid against his wife . The court dismissed the application on DATE . No reasons for that decision were given .

Subsequently , on CARDINAL and DATE and DATE , DATE and DATE the Wrocław - Śródmieście District Court , without giving any reasons for its decisions , dismissed CARDINAL further applications in which the applicant asked to be allowed to see his wife . He argued that the prolonged and drastic restrictions on their contact were cruel and inhuman and had severely affected his family life . In his application of CARDINAL DATE , the applicant stressed that since the court had heard evidence from his wife on DATE ( see also paragraph CARDINAL above ) , there was no further justification to continue the harsh measures imposed on their personal contact . He relied on Articles CARDINAL and CARDINAL of the Convention .

On DATE the FAC dismissed CARDINAL further , similar applications made by the applicant on CARDINAL and DATE , holding that the prohibition on any personal contact between him and his wife was justified by the risk that they might induce one another to give false testimonies before the court or obstruct the proper course of the proceedings .

NORP The applicant 's wife was allowed to visit him in prison on DATE . That visit took place in the presence of the prison guard .

At the material time the rules governing detention on remand were contained in LAW of the Law of DATE – Code of Criminal Procedure ( “ the Code ” ) ( PERSON postępowania karnego ) – entitled “ Preventive measures ” ( NORP zapobiegawcze ) . The LAW is no longer in force . It was repealed and replaced by LAW DATE ( commonly referred to as the “ GPE Procedure ” ) , which entered into force on DATE .

Until DATE ( i.e. the date on which the Law of DATE on LAW to LAW and Other Criminal Statutes ( “ the DATE Law ” ) entered into force ) at the investigation stage of criminal proceedings detention on remand was imposed by a prosecutor .

Article QUANTITY of the LAW ( in the version applicable at the material time ) stated :

“ CARDINAL . Preventive measures shall be imposed by the court ; before a bill of indictment has been lodged with the competent court , the measures shall be imposed by the prosecutor .

A prosecutor may impose a preventive measure only with respect to a person who has been questioned in the case as a suspect . Before ordering detention on remand or deciding on bail the prosecutor shall personally hear the suspect . ”

A detainee could , under LAW , appeal against a detention order made by a prosecutor to the court competent to deal with his case ; however , he was not entitled to be brought before the court dealing with his appeal .

The Code listed as “ preventive measures ” , inter alia , detention on remand , bail and police supervision .

Article CARDINAL set out the general grounds justifying imposition of the preventive measures . That provision read :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”

Article CARDINAL § CARDINAL defined grounds for detention on remand . The relevant part of this provision , in the version applicable until DATE , provided :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when he has no fixed residence [ in GPE ] or his identity can not be established ; or

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ; or

( CARDINAL ) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in LAW ; or

( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society .

On DATE sub - paragraphs CARDINAL and CARDINAL of Article CARDINAL § CARDINAL were repealed and the whole provision was redrafted . From that date onwards the relevant sub - paragraphs read :

“ ( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or he has no permanent abode [ in GPE ] ; or

( CARDINAL ) [ as it stood before DATE ] . ”

Paragraph CARDINAL of Article CARDINAL provided :

“ If an accused has been charged with a serious offence or an intentional offence [ for the commission of which he may be ] liable to a sentence of a statutory maximum of DATE imprisonment , or if a court of first instance has sentenced him to DATE imprisonment , the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed . ”

The Code set out the margin of discretion in maintaining a specific preventive measure . Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate .

Article CARDINAL § CARDINAL provided :

“ A preventive measure [ including detention on remand ] shall be immediately lifted or varied , if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one . ”

Article CARDINAL stated :

“ Detention on remand shall be imposed only when it is mandatory ; this measure shall not be imposed if bail or police supervision , or both of those measures , are considered adequate . ”

The provisions for “ mandatory detention ” ( for instance , detention pending an appeal against a sentence of imprisonment exceeding DATE ) were repealed on DATE by the PERSON of DATE on LAW to LAW and Other Criminal Statutes .

Finally , Article CARDINAL stipulated :

“ If there are no special reasons to the contrary , detention on remand should be lifted , in particular , if :

( CARDINAL ) it may seriously jeopardise the life or health of the accused ; or

( CARDINAL ) it would entail excessively burdensome effects for the accused or his family . ”

Until DATE , i.e. the date on which the relevant provisions of the Law of DATE entered into force , the law did not set any time - limits on detention on remand in the court proceedings .

Originally , the provisions setting out time - limits for detention were to enter into force on DATE ; however , their entry into force was eventually postponed until DATE .

Article CARDINAL of LAW in the version applicable after DATE provided , in so far as relevant :

“ CARDINAL . The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed DATE and DATE in cases concerning offences . In cases concerning serious offences [ offences for the commission of which a person is liable to a sentence of a statutory minimum of DATE imprisonment ] this period may not exceed DATE .

NORP In particularly justified cases ORG may , on an application made by the court competent to deal with the case , ... prolong detention on remand for a further fixed period exceeding the time - limits set out in paragraphs . CARDINAL and DATE , when it is necessary in connection with a suspension of the proceedings , a prolonged psychiatric observation of the accused , when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph CARDINAL . ”

On DATE , by virtue of the Law of DATE , paragraph CARDINAL of that Article was amended and the grounds for prolonging detention beyond the statutory time - limits included also :

“ ... other significant obstacles , which could not be overcome by the authorities conducting the proceedings ... ”

No appeal laid in law against ORG decision on an application made under LAW .

In cases where ORG dismissed such an application , a detainee had to be released . As long as it had not reached a decision , an application of the relevant court DATE which had a form of a decision ( “ postanowienie ” ) – was as a basis for the continued detention .

At the material time the relations between the authorities of the NORP State were set out in interim legislation , LAW of DATE ( Mała PERSON ) . Article CARDINAL of the LAW affirmed the principle of the separation of powers in the following terms :

“ The legislative power of the ORG shall be vested in the PERSON and the ORG of GPE ; the executive power shall be vested in the President of GPE and ORG ; and judicial power shall be vested in the independent courts . ”

The PERSON of DATE ( as amended ) on ORG LOC o ustroju sądów powszechnych ) in the version applicable at the material time provided , in LAW

“ CARDINAL . Courts of law shall dispense justice in GPE .

Courts of law shall be courts of appeal , regional courts and district courts . ”

The Law of DATE ( as amended ) on ORG ( Ustawa o Prokuraturze ) set out general principles concerning the structure , functions and organisation of prosecution authorities .

Section CARDINAL of the PERSON , in the version applicable at the material time , stipulated :

“ CARDINAL . NORP The prosecution authorities shall be the Prosecutor General , prosecutors and military prosecutors . Prosecutors and military prosecutors shall be subordinate to ORG .

The Prosecutor General shall be the highest prosecution authority ; his functions shall be carried out by the Minister of ORG . ”

Chapter III of the PERSON entitled : “ Parties to proceedings , defence counsel , representatives of the victims and representatives of society ” described a prosecutor as a party to criminal proceedings . Under all the relevant provisions of the LAW taken together , a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings . As regards the general position of the prosecution , at the material time they were not independent from the executive since the Minister of ORG carried out the duties of ORG .

At the material time there were CARDINAL different legal avenues enabling a detainee to challenge the lawfulness of his detention : appeal to a court against a detention order made by a prosecutor ; proceedings in which courts examined applications for prolongation of detention made by a prosecutor at the investigation stage and proceedings set in motion by a detainee 's application for release .

As regards the last of these , LAW ( in the version applicable at the material time ) stated that an accused could at any time apply to have a preventive measure quashed or lifted . Such an application had to be decided by the prosecutor or , after the bill of indictment had been lodged , by the court competent to deal with the case , within a period not exceeding DATE .

Under LAW of LAW the presence of the parties at judicial sessions other than hearings was a matter for discretion of the court . Sessions concerning an application for release , a prosecutor 's application for prolongation of detention or an appeal against a decision on detention on remand were held in camera . If the defendant asked for release at a hearing , the court made a decision either during the same hearing or at a subsequent session in camera .

At the material time the law did not give the detainee the right to participate in any court session concerning his detention on remand . In practice , only the prosecutor was informed of and could participate in such sessions . If he was present , he was entitled to adduce arguments before the court . The prosecutor 's submissions were put on the record of the session ( cf . Włoch v. GPE , no . CARDINAL , judgment of DATE , § § CARDINAL ) .

Articles CARDINAL of LAW of DATE ( the Code is no longer in force ; it was repealed and replaced by the “ new ” LAW DATE , which entered into force on DATE ) concerned the execution of detention on remand . Under LAW of the LAW , a detainee might receive visitors in prison or might contact his family by prison internal phone provided that he had obtained permission in writing from the investigating prosecutor ( at the investigation stage ) or from the trial court ( once the trial commenced ) . The authorities could order that a visit should take place in the presence of a prison guard .

Pursuant to the same provision , all correspondence of a detainee was , as a rule , censored , unless a prosecutor or a court decided otherwise . There was no legal means whereby a detainee could appeal against or , in any other way , contest censoring of his correspondence or the scope of that measure ( cf . PERSON v. GPE , no . CARDINAL/CARDINAL , judgment of DATE , § § CARDINAL - CARDINAL ) .


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

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

On DATE , ORG of GPE convicted the applicant and his brother of arson and sentenced them to a term of imprisonment of DATE and DATE . The applicant lodged an appeal ( recurso de casación ) to the ORG . On DATE , ORG rejected the appeal . The amparo appeal to ORG was rejected on CARDINAL DATE .

On DATE , the applicant and his brother submitted an application to ORG complaining that their right to a fair trial had been breached by the NORP courts , namely ORG of GPE . Invoking several provisions of LAW , they complained of the judicial authorities’ repeated refusal to grant bail before the trial , of the lack of competent interpreters during the interrogation by the police , that during the trial the legal aid lawyer had not defended them properly , and that his brother had been denied the right to defend himself in person .

On DATE , ORG found GPE to be in breach of ORG CARDINAL § CARDINAL , CARDINAL and CARDINAL § CARDINAL ( c ) and CARDINAL of the LAW . In the subsequent response given to the Human Rights Committee’ findings , ORG , on DATE , guaranteed the applicant the right to administrative and judicial redress by the way of domestic legal procedures and , if necessary , by means of supranational organisations .

On DATE , the applicant instituted CARDINAL sets of proceedings . First , he claimed compensation from ORG for the defective operation of the machinery of justice under sections FAC and seq . , of FAC ( PERSON del Poder Judicial LOPJ ) . This appeal is still pending . Secondly , he lodged a judicial appeal with ORG of GPE asking for the annulment of the criminal proceedings . On DATE , ORG of GPE rejected the appeal on the ground that it had not been lodged within the specified time limit of DATE after the notification of the judgment of DATE . Invoking Article CARDINAL of LAW ( right to a fair trial ) , the applicant lodged an amparo appeal with ORG . By a decision of CARDINAL DATE , the Constitutional Court rejected the amparo appeal . The ORG declared that granting compensation for the defective operation of the machinery of justice could be considered in certain circumstances as effective reparation in the case of a violation of LAW . However , when a person had been deprived of his liberty as in the present case , the grant of compensation was not the most appropriate way of remedying the infringement of fundamental rights . In these cases , the nullity appeal was not the only possibility and the applicant had at his disposal either an application for a retrial ( recurso de revisión ) or an application based on judicial error . The court came to the conclusion that the alleged violation could still be remedied . Consequently , it rejected the amparo appeal for non - exhaustion .


Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva;Zoryana Bortnovska

The first applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . The second , third , fourth and fifth applicant are , respectively , PERSON PERSON , Ms GPE PERSON , PERSON GPE PERSON and Mr Petro Mykhailovych Romanchuk , who were born on different dates DATE and are NORP nationals . They all live in GPE . The respondent Government are represented by PERSON , from ORG .

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

The first applicant is the leader of ORG of GPE . In DATE the Nataliya PERSON political party nominated the applicants as candidates for the elections to the Verkhovna Rada of GPE ( ORG ) that were to be held on DATE .

On DATE the Studiya CARDINAL + CARDINAL TV Channel ( the “ CARDINAL + CARDINAL Channel ” ) had scheduled a political debate on television . PERSON , the leader of another political party ( ORG ) was due to appear for the debate with the first applicant , but failed to do so .

As was later found in the court proceedings the CARDINAL + CARDINAL Channel cancelled this debate at TIME by agreement with another TV channel , which planned to hold a debate between the first applicant and PERSON the following day . Therefore , Ms Tymoshenko was in fact not allowed on to the LOC of FAC by the security .

Apparently being unaware of these facts , the first applicant reacted during the live broadcast to the non - appearance of her counterpart by saying “ She [ Ms Tymoshenko ] definitely knew that I would prove that she was a thief ( воровка ) , that because of her , PERSON and other oligarchs robbed GPE , there will be no way out for GPE until order is restored . She staged a piece of theatre here and she deliberately did not come here and she will never wash out her guilt , therefore DATE [ on another TV channel ] I will prove who she is . ... It is all planned with NORP technology . We will not participate in this provocation ” .

PERSON lodged a complaint with ORG that the first applicant had infringed electoral legislation and breached electoral rights . On DATE ORG gave an official warning to the first applicant finding that she had infringed electoral legislation ( in particular , LAW ) and the principle of presumption of innocence enshrined in LAW . This warning was published in the NORP national newspapers PERSON and ORG .

The first applicant lodged a complaint against this decision with ORG . On DATE ORG , composed of CARDINAL judge , found against the first applicant . It also ruled that ORG had acted lawfully and that the first applicant had infringed electoral legislation by publicly disseminating untrue statements about Ms Tymoshenko . In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal . On DATE a panel of CARDINAL judges of ORG rejected the applicant 's request for extraordinary review of this decision for lack of grounds .

Following these events , ORG instituted defamation proceedings in the Obolonsky ORG of Kyiv ( the “ ORG ” ) against the first applicant , seeking to protect her honour , dignity and business reputation and claiming that statements disseminated by the first applicant were untrue . She also requested the court to be given an opportunity to rebut these statements .

On DATE the court held a hearing in which both parties participated . During the hearing the applicant challenged the videotape of her speech provided by the plaintiff . The court rejected this challenge by a separate ruling . The same day the first applicant tried to appeal against the separate ruling , but her appeal was rejected as that ruling was not subject to separate appeal . The first applicant 's representative requested an adjournment of the hearing .

On DATE , during the next hearing , the first applicant lodged a petition with the court in which she requested the court to obtain from ORG and ORG copies of the decisions related to investigation of the criminal cases against ORG and other leaders of ORG and violation of the tax legislation by them “ [ t]o confirm ( на підтвердження ) the words said by me with respect to [ Ms ] PERSON in the live broadcast of GPE during the TV debates on DATE ” . This request was rejected on the ground that it was irrelevant to the proceedings in question .

The first applicant also requested the court to adjourn the hearing .

On DATE , during the next hearing , the first applicant lodged another , similar request with the court for documents from ORG and ORG stating “ [ s]ince I used the word “ thief ” in its other generally accepted meaning , to confirm ( на підтвердження ) the words said by me with respect to [ Ms ] PERSON in the live broadcast on the CARDINAL + CARDINAL ” Channel during the TV debates on DATE ... ” . It was rejected on the same ground .

During the hearing the applicant 's representative also requested the court to summon a representative of ORG who could explain about violations of the tax legislation by PERSON and her company . This request was also refused as irrelevant to the claim under examination .

Following refusal of her requests the applicant sought withdrawal of the judge . By a separate ruling DATE the challenge was rejected as unfounded .

During its next hearing , on DATE , the court decided to join the CARDINAL + CARDINAL Channel as co - defendant . That hearing was adjourned until DATE .

On DATE the court postponed the hearing due to the absence of the first applicant and her representatives .

On DATE , having established that the first applicant and her representatives had failed to appear before the court for the second time without a plausible reason , the court decided to examine the case in their absence . The court found in part against the first applicant . In particular , it established that ORG had never been convicted of theft or a similar criminal offence . Thus , the statements of the first applicant “ she is a thief ” and “ she will never wash out her guilt ” violated LAW ( presumption of innocence ) . It also found untruthful the part of the first applicant 's speech in which she had accused ORG of deliberate failure to appear for the TV debate in question . The court ordered ORG to ensure that ORG had TIME of live broadcast to correct the statements disseminated about her by the first applicant . It also ruled that the first applicant had to pay for the CARDINAL-second broadcast which would be given to PERSON .

The first applicant appealed against this decision . She stated , in particular , that the term “ thief ” had been used to criticise the “ political amorality ” of PERSON leadership of ORG of GPE in DATE , and thus had been a value judgment . She further complained that the first - instance court had refused to obtain the evidence from the law - enforcement bodies that she had requested , had unlawfully refused her request for withdrawal of the judge and had held a hearing in her absence .

On DATE ORG , having held a hearing in which all parties participated , upheld the decision of ORG . The court also considered that the refusal of the request for withdrawal of the judge and the decision to continue examination of the case in the applicant 's absence were in compliance with the relevant law .

On DATE a panel of CARDINAL judges of ORG upheld the decisions of the lower courts .

On DATE ORG informed the applicants ' party that they had received PERCENT of the ballots , while the electoral threshold was PERCENT . The applicants alleged that the election results had been falsified . On DATE they lodged a complaint with ORG against its resolution announcing the results of the elections . They further sought annulment of the election results and demanded that ORG announce new elections . ORG allegedly failed to react promptly to this complaint . On DATE the applicants lodged a complaint against ORG with ORG challenging this omission . On DATE their claim was rejected on formal grounds as they had failed to comply with the procedural requirements stipulated by law .

As ORG had not accepted the results of the elections in the majority electoral constituencies nos . CARDINAL , DATE and CARDINAL , new elections were scheduled there for DATE .

On DATE ORG adopted resolution no . CARDINAL , rejecting the first applicant 's complaint against the resolution of the regional electoral commission of DATE announcing that PERSON had obtained a majority of the votes during the repeated elections of DATE . On DATE the first applicant lodged a complaint with ORG against ORG challenging its decision , on the grounds that Mr S. and his representatives had allegedly bribed voters . On DATE ORG found against the first applicant . In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal .

On DATE additional parliamentary elections were held in constituency no . CARDINAL .

On DATE ORG adopted resolution no . TIME , rejecting the first applicant 's complaint against the resolutions of the regional electoral commission of DATE announcing that PERSON . had obtained a majority of the votes during the repeated elections of DATE and rejecting the applicant 's complaints about the election results . The first applicant lodged a complaint with ORG against ORG . On DATE ORG found against the first applicant . In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal .

Additional elections had been announced in constituency no . CARDINAL and the first applicant was registered as a candidate on DATE .

On DATE the Deputy Prosecutor of the Chernigiv Region informed the constituency election commission about a violation of the electoral law in publishing campaign materials by the first applicant .

On DATE the constituency commission , having established that Mr M. - the authorised agent of the first applicant in the election campaign - had published campaign material in support of the first applicant in violation of the electoral law , decided to cancel the applicant 's registration for repeated violation of the requirements of the electoral law ( resolution no . DATE ) .

On DATE the NORP ORG of Chernigiv Region considered a complaint from Mr. P , another candidate from the same constituency , of violation of electoral legislation by the first applicant , namely several publications of campaign materials in the PERSON newspaper which were paid for with money not included in the official election expenses of the candidate . The court found against the applicant , confirming a violation of electoral legislation . It based its findings on the facts that the newspaper published this material at its own expense , that this newspaper was founded by the party of which the applicant was a leader , and that the editor - in - chief of the newspaper was Mr M. - the authorised agent of the first applicant in the election campaign .

On DATE ORG cancelled resolution no . DATE of the constituency commission of DATE , having established that the constituency commission had misinterpreted relevant legislative provisions .

On DATE the constituency commission , by its resolution no . DATE , cancelled the applicant 's registration as a candidate on the basis of the court 's decision of DATE and in accordance with LAW ( CARDINAL ) and ( CARDINAL ) of LAW . DATE ORG upheld the resolution of the constituency commission by its resolution no . DATE . The applicant appealed to ORG .

On DATE ORG , in the presence of the first applicant 's representatives and members of ORG , considered the applicant 's appeal and found that the decisions of the relevant electoral commissions were well - founded and in compliance with law . Therefore , ORG upheld the decisions on the cancellation of the applicant 's registration .

Article CARDINAL

... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family , and of the right to demand that any type of information be rectified , and also the right to compensation for material and moral damage inflicted by the collection , storage , use and dissemination of such incorrect information .

Article CARDINAL

A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty .

Article CARDINAL

... The procedure for conducting elections of ORG of GPE shall be established by law .

Article CARDINAL . Financing of Elections of Deputies

Expenditures for the preparation and conduct of elections of deputies shall be incurred exclusively from the funds of ORG as well as the resources of election funds of parties ( blocs ) the candidates for deputy of which are registered in the multi - mandate constituency , and candidates for deputy registered in single - mandate constituencies .

In order to finance their election campaign , a party ( bloc ) of the candidates for deputy , which are registered in the multi - mandate constituency , as well as candidates for deputy registered in single - mandate constituencies , shall establish their election funds , which shall be formed in accordance with the procedure set forth by this PERSON .

Article CARDINAL . ORG of a Candidate ( Candidates ) for Deputy

A constituency election commission shall cancel its decision regarding the registration of a candidate for deputy in the following cases :

CARDINAL ) establishment by the court that the candidate for deputy used other sources of financing besides the resources of his / her election fund to budget the election campaign ;

CARDINAL ) if a candidate for deputy , upon getting a warning from the constituency or ORG , mentioned in paragraph CARDINAL of this LAW , repeatedly violated the same requirements of this PERSON .

In the event of the violation of other provisions of this PERSON on the part of a candidate for deputy or a party ( bloc ) , a corresponding election commission may issue a warning , which shall be made public in the state - owned and municipal media or in a different way ...

Article CARDINAL . Forms and ORG

Campaigning may be performed in any forms and by any means not conflicting with LAW and laws of GPE . ORG shall have the right to discuss political programmes of parties ( blocs ) , political , business , and personal features of candidates for deputies freely and thoroughly , to campaign in support or against parties ( blocs ) , candidates for deputies ...

Article CARDINAL . Protection of honour , dignity and reputation

A citizen or an organisation shall be entitled to demand in a court of law that a statement be refuted if it is not true or is set out untruthfully , degrades their honour and dignity or reputation , or causes damage to their interests , unless the person who disseminated the statement proves that it is truthful .

... Statements disseminated about a citizen or an organisation that do not conform to the truth and cause damage to their interests , honour , dignity or reputation shall be subject to rectification , and pecuniary and non - pecuniary damage can be recovered . A limitation period of DATE shall apply to claims concerning rectification of such data and compensation .

The relevant extracts of the resolution read as follows :

“ ORG ...

Recommends to member governments , as a minimum , that the position of the individual in relation to the media should be in accordance with the following principles :

NORP In relation to information concerning individuals published in any medium , the individual concerned shall have an effective possibility for the correction , without undue delay , of incorrect facts relating to him which he has a justified interest in having corrected , such correction being given , as far as possible , the same prominence as the original publication .

NORP In relation to the information concerning individuals published in any medium , the individual concerned shall have an effective remedy against the publication of facts and opinions which constitute :

ii . an attack upon his dignity , honour or reputation ... ”

The relevant extracts of the recommendation read as follows :

“ CARDINAL . Scope of the right of reply

Any natural or legal person , irrespective of nationality or residence , should be given a right of reply or an equivalent remedy offering a possibility to react to any information in the media presenting inaccurate facts about him or her and which affect his / her personal rights . ”